Normally whenever we think of Trademarks we think of some word, Label, Signature, Numeral being used in relation to some goods or services.What about unconventional marks such as Gesture as a Trademarks? Do Gestures come in the category of Trademarks. The Answer is yes. Gestures are Trademarks. In fact, they are registrable also provided they are inherently distinctive or have become distinctive because of their use over a period of time.
In India specifically, unconventional trademarks are recognised under the provisions of
Section 2(1)(m) which defines Mark
“mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;
and Section 2(1)(zb) of the Trade Marks Act 1999
“Trade mark” means 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 shape of goods, their packaging and combination of colours
Example of Gesture Trademarks:-
1. Gesto manual
Latest example of Registration of Gesture mark is Gesto Manual in Ecudaor . “Gesto Manual” trademark is owned by Nestle, which consists of the insertion of the index finger in the creamy centre of a ring-shaped cookie:-
2. “Lightning” pose
Mr. Usain Bolt, the famous Athlete, has got his above gesture”Lightning” Pose registered for clothing, sports equipment and other merchandising classes as well as in class 41 for sporting activities.
3. “Devils Horns”
Mr. Genes Simons the famous Singer has filed for registration of the above gesture mark “Devils Horns”. The mark was seeking protection for the following services in Class 41: “Entertainment, namely, live performances by a musical artist, personal appearances by a musical artist.” However, the application faced heavy criticism from music industry and was soon after abandoned by him. May be because it is one of the common gestures, since the same or similar gestures have been associated with Beatles and rock artists worldwide.
However, the Gesture marks have their own issues:-
The main issue faced by Gesture Marks is that most of them lack the capability of source identification and distinctive character.
—Lack of distinctiveness
However, the issue of lack of distinctiveness can be overcome on the grounds if the gesture mark has acquired distinctiveness or is well-known amongst the relevant public and is associated with the Applicant itself, like the Gesture of Lightning of Usain Bolt.
—Problem of Enforcement
The Applicant would be unable to sue anybody using the gesture if the same is not used in commerce and thus, would not constitute infringement.
Thus, the goal of the owner of the gesture mark should not be to prohibit anybody from replicating the gesture, however he should take steps to prevent infringement in cases of commercialisation by others without permission of the image of the gesture for the goods or services for which the gesture is protected.
Though, its not very common to see or come across Gestures as trademarks, but looking at the ever evolving society, it seems the Gestures as Trademarks will soon catch up.