Abstract
Article 15 of the TRIPS Agreement defines Trademark as any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings. It further states that Members may require, as a condition of registration, signs to be visually perceptible. This means that it is not compulsory for the Trademark to be visually perceptible so far TRIPs Agreement is concerned. Further, Article 1 of the TRIPS Agreement states that Members are not obliged to implement in their law more extensive protection than is required in the aforesaid agreement. This means that the Member States may or may not require Trademark to be visually perceptible or capable of graphical representation. The only necessary condition is that the given sign shall be capable of distinguishing the goods or services of one undertaking from those of other undertakings. This is because the primary function of a trademark is to distinguish the goods or services of one undertaking from those of other undertakings, whether a mark is visually perceptible or not doesn’t matters. However, the moot question is that whether it is possible for a mark to perform the primary function of a trademark despite lacking any capability of graphical representation. The purpose of this project is to study the registrability of non-conventional trademark under the trademark regimes of United States and India.
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