RECOGNISING NON-TRADITIONAL TRADE MARKS IN SRI LANKA: INSIGHTS FROM EUROPE

Abstract

For many centuries, traders have used symbols and marks to indicate the origin of their goods and today a trademark holds enormous value to its owner. With the development of technologies, non-traditional trademarks have emerged as a powerful tool for brand identity and protection. Therefore, the aim of this research is to explore the extent to which non-traditional trademarks can be recognised in Sri Lanka as viewed through the lens of European experience. A non-traditional trade mark is a mark that can include elements such as colors, sounds, scents, tastes, textures, shapes, moving images, and other non-visual signs. Due to the expansion of the market, the growing use of new branding strategies that utilise non-traditional trade marks has become an important aspect for businesses. Such non-traditional trade marks are recognised by many countries, more specifically by the countries in the European Union. Further, the importance of recognising non-traditional trade marks has been emphasised by IP scholars, members of the legal fraternity and business leaders worldwide, including Sri Lanka. In 2003 Sri Lanka introduced its Intellectual Property Act as a TRIPS compliant legislation. Findings of this research reveal that the current trade mark law regime in Sri Lanka only recognizes visible marks that does not make room for non-visual senses of human beings. As per section 101 of the Act, a trade mark is any visible sign serving to distinguish the goods of one enterprise from those of another. As a consequence, non-traditional non-visible trademarks such as sound, motion, multimedia and hologram marks will not be afforded trade mark protection in Sri Lanka. However, there may be a strong case for Sri Lanka to create a legal environment that recognises non-visible non-traditional trademarks, arguably there is a need for Sri Lanka businesses to protect their non-traditional trade marks in Sri Lanka to expand their business footprints locally and abroad. The same is true for foreign business establishments who need to protect their trade marks in Sri Lanka to expand their business footprint locally as well as abroad. In terms of the implication of this research, the researcher is of the view that this research will enlighten legal reform, and it offers suggestions to policy makers in this country. In this regard, live experiences from the European Union will provide the necessary impetus for Sri Lanka. This research is library-based and carried out by employing both doctrinal and comparative legal research methods.