Trademark Protection for Motion Mark

In the fast-paced world of today, companies are not only represented by traditional forms of trademarks, but they are also increasingly using unorthodox forms of trademarks. There is nothing novel about the practise of registering unusual trademarks in India. On the other hand, it has mostly been limited to certain types of atypical trademarks such as colour markings and sound marks. The law has not yet caught up with the most recent developments in trademarks. A motion mark is an example of this kind of unorthodox mark.

What does Exactly Motion Mark Define?

Motion Mark is a performance measurement tool for animation. It can be used to measure the performance of an animation in terms of its frame rate, jank, and other metrics. It can be used to compare the performance of different animations, and to identify areas where performance can be improved. It can be used on websites, mobile apps, and other types of animations. It could be a short video clip that combines moving images and sound.

Likewise, a video clip or a set of sequential still pictures illustrating the movement or change of position must be submitted as a representation of the mark. When still photos are used, they could have numbers next to them or come with a caption that explains the order they should be viewed in.

Motion Mark under the Trademark Act in India

The Act does not provide a definitive definition of what a motion mark is. The draught of the Manual of Trade Marks does not include any commentary on the matter either. A motion mark is a kind of mark that, in general, may be understood to be a mark that consists of a movement or change in the position of the parts that comprise a mark. It may take the form of a brief video or audio clip with moving visuals and/or sound.

According to the definition that can be found in section 2(1)(zb) of the Act, a trade mark is “ a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colours" In addition, the Act's section 2(1)(m) defines a mark as "including any combination of the following: a device, trademark, heading, label, ticket, name, signature, word, letter, numerical, form of products or packaging, or combination of colours or any combination thereof"

Given the aforementioned requirements, the two most important questions are as follows −

• Whether or whether the two sections mentioned above are comprehensive enough to contain a motion mark; and

• Is it possible for a motion mark to be visually represented?

Definition of Trademark That Includes Everything

Regarding the first concern, the High Court of Calcutta's Single Judge Bench ruled in the case of Assam Roofing Ltd. and Others v. JSB Cement LLP and Others that in Section 2(m) of the Act provides an inclusive meaning of “mark." Despite the fact that motion markings were not the focus of these rulings, the Court's interpretation establishes acceptable reasons for the inclusion of a motion mark as a mark in accordance with the Act.

Trademark for the Graphical Representation of Motion

Regarding the second concern, the representation of a trademark for goods or services represented or capable of being represented in paper form, which includes representation in digitised form, is what the Trade Marks Rules, 2017 refer to when they define graphical representation in Rule 2(1)(k). Therefore, in order to register a motion mark, it is necessary for all of the moving parts included within the mark to be capable of being represented in a paper form. A graphical depiction of the mark is necessary before it can be submitted to the Trademark Journal for publication.

On the other hand, because of this necessity, registering a motion mark may be somewhat challenging. The perfect portrayal of a motion mark must contain the movement of the parts of the mark in addition to the sound; yet, this cannot be completely reproduced on paper.

Motion Mark as a Device mark

The 'CONNECTING HANDS' mark owned by Nokia was the first motion mark to be submitted for registration in India, and it was given the number 1246341. On the other hand, the records of the Registry reveal that the mark was submitted for registration as a device mark as opposed to a motion mark. The fact that India has not seen any applications for motion markings until very recently is probably because of this reason.

A Shift in Perspective on the TM Registry

In a recent case, the Trade Markings Registry in Delhi first raised an objection to an application submitted by the Toshiba Corporation for their motion mark for 'TOSHIBA' (Application No. 4093005) on the grounds that "motion marks are not approved in India." In spite of this, the Registry ultimately decided to reconsider its stance, and as a result, the mark was eventually approved and is now registered as a motion mark.

In later cases, the Trade Mark Registry has been responsible for the registration of motion marks (e.g. Registration No. 4192672 and 4192678).

The Changing Components That Make Up a Motion Mark

A review of the preceding registrations reveals that the marks that have been granted registration consist solely of the graphical representation of the relocating components of the motion mark, rather than the motion mark itself in its purest form. This is evident from the fact that the motion mark itself has not been granted registration. The security that may be afforded to a motion mark is severely compromised by the restricted capabilities of graphical depiction.

Conclusion

The above discussion demonstrates that despite an early reluctance to accept motion markings, the Trademark Registry has recently begun to accept and register motion marks. This is despite the fact that the Trademark Registry was initially reluctant to accept motion marks. If a motion mark cannot yet be graphically represented, it may nevertheless be registered as long as it meets the criteria of the Act in all other respects notwithstanding the fact that it cannot yet be graphically represented. On the other hand, it is clear that there are just a few motion marks that have been captured at this time. In order to free themselves from the shackles of relying only on graphical representation, the next step should include the introduction of the option of representing such markings in multimedia file formats, such as MP4 files. This will make it possible to provide improved protection for a wider variety of trademarks in the era of digital technology.

FAQs

Q1. Can someone register motion mark in India?

Ans. Yes, one can register motion mark in India as Trademark. We need to file application requesting the filing of motion mark with Trademark registry.

Q2. What are the requirements for registration of Motion mark as trademark?

Ans. Major requirements are −

• Unique nature

• Recognizable by public

• Quantifiable proof and distinctive sample to indicate ease of communal identification