Intellectual property law, more specifically trademark law, has a long history with sports and sports teams. It is advantageous for a sportsperson to obtain trademark protection in order to make more money, especially for players whose careers are expected to be brief. As a new source of revenue production in the sports sector, franchising, branding, and merchandise play a significant role. We shall talk about a few unconventional (non-traditional) sports trademarks in this post.
According to section 2(zb) of the Trademark Act of 1999 in India, a “trademark” is a mark that may be represented visually and can distinguish between the goods or services of one person from those of another. Therefore, a trademark is a crucial piece of intellectual property that aids customers in distinguishing between a product and a specific company. In essence, trademarks foster consumer loyalty, trust, and confidence since they are perceived as a guarantee of the highest calibre goods. A colour, scent, sound, shape, or even a video can be a trademark, among other less conventional options. Non-traditional marks are what these trademarks are known as. The unorthodox trademarks that have been successfully registered, seen from a global viewpoint, are listed below. These are:
- Shape marks;
- Colour marks;
- Smell marks;
- Sound marks;
- Multimedia marks;
- Touch and texture marks;
- Taste marks;
- Gesture marks.
There are numerous instances of trademark infringement in the Indian sports business. For instance, the BCCI filed a lawsuit alleging that the domain name or brand Indian Fantasy League was violated. The Madras High Court ruled that IFL would not be permitted to utilise the name or logo of the BCCI since doing so would constitute trademark infringement. Infringement instances involved not only trademarks but also celebrity names that are protected as trademarks. In Sourav Ganguly v. Tata Tea Ltd., for instance.
There are very few successful registrations of unconventional trademarks in the sports industry in India, and the reasons for this are graphical representation and distinctiveness, both of which are statutory prerequisites for an unconventional trademark’s ability to be successfully registered.
- Graphical representations- Graphical representation, which is also a major barrier, is the first and most crucial factor for registering an unorthodox trademark. This can be done either by describing the action in great detail or by using a picture or drawing as a graphical representation. Additionally, the athlete or team making the application should ensure that the comprehensibility, accuracy, clarity, durability, accessibility, and objectivity of the graphical representation have been taken into account. While representing trademarks in a graphical style, it can be difficult to convey other unusual trademarks, such as fragrance or colour marks, which are intangible in nature. It won’t be enough to just write down the smell’s chemical composition in order to legally register the trademark. Additionally, the scent or sound sample cannot be represented graphically. There is only one method to register such a distinctive trademark, and that is to include a description that is so specific that no other sound or fragrance can be mistaken for the one that is attempting to be registered as a trademark.
- Distinctiveness- Distinctiveness and uniqueness are additional requirements for the successful registration of an unusual trademark. The athlete should ensure that his trademark is distinctive in character and, more crucially, that it won’t lead the general public to believe that it covers any other goods or services that fall under the same trademark classification. The concept of distinctiveness is one that develops with time. The distinctiveness of such a brand cannot be established by pointing to its limited lifespan. Additionally, proving that the mark has become unique is required in a case of infringement or passing off.
The Indian government must quickly adopt contemporary marketing strategies that use colours, shapes, fragrances, and sound to distinguish their products. It is also essential for WIPO to provide clear instructions on how applicants can submit applications by meeting the requirement, i.e., graphical representation since it would generate global trademark system harmonisation in the interest of international trade. The sports industry might gain a lot from TRIPS’ introduction of uniform guidelines for their member nations to follow when registering unusual trademarks because it would systematise the registration process.