INTRODUCTION

Conventionally, mankind possessed tangible properties over which they had exclusive ownership rights. However, as the society progressed, humans began to apply their skills and intellect to produce works in the fields of science, art, music, dramatics and literature; which later led to the emergence of a novel concept of property known as Intellectual Property. Although intangible but it could be protected and enforced by having legal sanction assigned to it. This led to the development of intellectual property rights. Intellectual property rights can be granted on plethora of works but mainly they can be classified into trademarks, patents, designs, copyrights, geographical indicators etc.; each having its own unique significance and value. Among others, trademarks can be protected to secure a word, name, number, symbol etc. of an individual, business or organization to maintain and protect their goodwill and reputation in the market.

IMPORTANCE OF REGISTRING A TRADEMARK

A trade mark represents an enterprise’s name or the brand name of a particular product or a service and helps the consumers in distinguishing the goods or services from one enterprise to that of another. It is a kind of intellectual property that helps an undertaking in building their brand value or goodwill in the marketplace and it also enables the consumer to make a lifestyle or fashion statement. Apart from promoting the brand name, a trade mark also ensures the authenticity of the quality of goods or services as original to the consumers. A trade mark when registered, it gives an exclusive monopoly right to its owner to use it exclusively for their particular good or service restricting other traders from using the same mark without a proper license. Therefore, it is important for you to protect your brand name by registering it as a trademark so as to stop other traders from selling their goods nearly resembling to yours by unlawfully using your brand name or its logo. The law of trademarks in India is governed by the Trade Marks Act, 1999 along with the Trademarks Rules, 2017.

KINDS OF TRADEMARKS

Under the Indian law, a trademark can be registered broadly under any one of the following six categories of a trademark at a time through an application that is made under Form TM A:

A trade Mark can be registered as a:

1. Word Mark: Trademarks that simply contains only letters or words or a combination thereof, are filed in the category of word marks. For example, it can be a brand name of a particular good like ‘PARLE G’ for biscuits or it can be a name of a business undertaking like ‘Reliance’ for Reliance Industries Ltd.
2. Device Mark: Device Marks are those that contain a symbol or a logo that may also contain a tagline beneath it. For example, the symbol of letter ‘m’ of the fast food chain McDonalds is a logo that is used on all of its products, is a device mark.
3. Sound Mark: You may have heard of some popular tunes like the one that used to broadcast on All India Radio or for a TV commercial of Nokia mobile phone or a four note ring of a bell for Britannia Biscuits, they are all examples of registered Sound Marks in India.
4. Shape of Good: A shape of good can also be registered as a Trademark in India. For example, the shape of the bottles of popular beverage COCA COLA is a registered trademark.
5. Combination of colours: A combination of specific shades of colours can also be registered as a trademark in India. For example, the purple colour packaging of Cadbury chocolates.
6. Three dimensional Mark: Trademarks can also be registered for three dimensional figures in India. For example, the triangular shape of the famous Swiss Chocolate ‘Toblerone’ is a registered 3D Trademark.

However, it is important here to note that a Trade Mark may contain different elements or is precisely a combination of one or more of the following categories as explained above. It may also happen that other traders may adopt a deceptively similar trade name or a logo that may visually look or phonetically sound just like your brand name. Therefore, to avoid any such confusion and in an effort to stop the misuse of registered trade marks by other competitors in the market, several uniform international standards for registering a trademark have been adopted by India. One of them pertains to the classification of graphical elements that comprise a Device Mark (symbol or a logo) is known as the Vienna Classification.

VIENNA CODE OF CLASSIFICATION OF FIGURATIVE ELEMENTS OF A TRADE MARK

For a smooth functioning and administration of the Intellectual Property registrations across the world, there are certain uniform International standards that each member country of the World Intellectual Property Organisation (WIPO) needs to abide. India became a member of the WIPO in the year 1975.

In the 1970s a need was realised by the members of the Paris Union to draft an international classification of figurative elements that form part of a Trade Mark. Consequently, the Vienna Agreement was concluded at the Vienna Diplomatic Conference that took place in 1973 by the United International Bureau for the Protection of Intellectual Property (BIRPI), the predecessor of the WIPO.

The countries that were party to the Vienna Agreement, established an International Classification of the Figurative Elements of Marks (popularly known as “the Vienna Classification” or “the Vienna Code”). The main objectives of the Vienna Classification are twofold:

• Firstly, it helps in easing out the exchange of documents at the international level (that is to say, in case you want to register your trade mark in other countries apart from India, once a Vienna Code is assigned to your mark by the respective registry where it is registered, the same shall be acknowledged and recognised by the Registry in the country where you’re seeking its protection)[1] and
• Secondly, it helps in facilitating a comprehensive search in the Trade Marks Database to find out the availability of a particular symbol, logo or a device mark you wish to register as your brand name.

Since the enactment of the Trade Marks Act, 1999 in India, although we were following the Vienna Codification for device marks, however, it is only recently in September 2019, that India officially ratified the Vienna Agreement, thereby becoming its 34^th member.

CONTENTS OF VIENNA CLASSIFICATION

The Vienna Classification follows a hierarchy system whereby the figurative elements that a trademark may contain, are classified from a general perspective to a particular form in a uniform list that is divided into 29 Categories. Further, each of these categories is divided into 19 divisions and 30 sections respectively. These Figurative elements are placed under different categories according to their shape, regardless of the purpose for which they are being used.

Following are the 29 broad categories of Figurative Elements under the Vienna Codification:

Category	Name of Category
1.	Celestial Bodies, Natural Phenomena, Geographical Maps
2.	Human Beings
3.	Animals
4.	Supernatural, Fabulous, Fantastic or Unidentifiable Beings
5.	Plants
6.	Landscapes
7.	Constructions, Structures for Advertisements, Gates or Barriers
8.	Food Stuffs
9.	Textiles, Clothing, Sewing Accessories, Headwear, Footwear
10.	Tobacco, Smokers’ Requisites, Matches, Travel Goods, Fans, Toilet Articles
11.	Household Utensils
12.	Furniture, Sanitary Installations
13.	Lighting, Wireless Valves, Heating, Cooking Or Refrigerating Equipment, Washing Machines, Drying Equipment
14.	Ironmongery, Tools, Ladders
15.	Machinery, Motors, Engines
16.	Telecommunications, Sound Recording Or Reproduction, Computers, Photography, Cinematography, Optics
17.	Horological Instruments, Jewellery, Weights And Measures
18.	Transport, Equipment For Animals
19.	Containers and Packing, Representations Of Miscellaneous Products
20.	Writing, Drawing Or Painting Materials, Office Requisites, Stationery And Booksellers’ Goods
21.	Games, Toys, Sporting Articles, Roundabouts
22.	Musical Instruments And Their Accessories, Music Accessories, Bells, Pictures, Sculptures
23.	Arms, Ammunition, Armour
24.	Heraldry, Coins, Emblems, Symbols
25.	Ornamental Motifs, Surfaces Or Backgrounds With Ornaments
26.	Geometrical Figures And Solids
27.	Forms of Writing, Numerals
28.	Inscriptions in Various Characters
29.	Colours

HOW IT WORKS?

In case, a mark consists of a logo or a symbol that graphically represents any shape of a human being like a man or a woman, or an animal like a tiger or an elephant, or a vehicle like a car, bicycle or a bus, then it becomes necessary for the applicant to mention the category of the applied Trade Mark as a Device Mark in its respective application.  

Once the Trade Mark application for a Device Mark is filed before the Trade Marks Registry in India according the place of business of the proprietor, then after a Formality Check of the contents of application which is made to ensure that the contents of the Application are in order, it is then send for Vienna Codification. At this stage, the status of your application on the Trade Marks Registry’s website would normally show like this: “Send for Vienna Codification”.

Let’s take an example of a trademark application that is filed for a jewelry trader which has a Logo or Device Mark that contains an image of a lady wearing a necklace. The Vienna Code for the respective application would fall under the main Category 2 that pertains to ‘Human Beings’ and further the third division that pertains to ‘women’ would be applicable along with Section 1 of the third division that pertains to ‘Heads’, so the Vienna Code would be 2.3.1 and since the mark also has another element of a ‘Necklace’, it would also fall in the 17^th Category that pertains to Horological Instruments, Jewelry, Weights And Measures, further its Division 2 which relates to Jewelry and Section 13 which pertains to Necklaces, jewelry chains, thus the Vienna Code would be 17.2.13 respectively.

Once the proper Codes are assigned to your application, it is then send for an Examination and after that if there are no objections, it is then advertised in the Trademarks Journal for 4 months, and thereafter, in case there are no opposition being made by any third party, your Trade Mark is registered for a period of ten years.

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[1] It is important here for you to note that the registration of a Trademark gives you’re a monopoly right to use excluding others, which is only restricted to the jurisdiction of the country where you have applied and registered your mark. Therefore, in order for you to expand your business at the international front, you need to apply for separate registrations in the selected country of your choice or you may file a single application to register your trademark in up to 122 countries under the Madrid Protocol by providing a one time fee.