Section 2 (1)(m) of the Trademarks Act, 1999 talks about ‘mark’. It means that which marks are considered as Trademarks. Further moving on Section 2 (1) (zb) of the Trademark Act, 1999 elaborates about, what is Trademark On the basis of its graphical representation. Talking about Non Traditional Trade Marks and its registrability, Article 15 of the TRIPS Agreement, 1995 says that marks such as sound, scent, shape etc. are capable of being registered. If we look at some International Treaties then those treaties has talked about the nontraditional trademarks in a widest sense and because of that the importance of this type of marks has increased. Smell Marks are associated with food, chemical or any perfume also. And it has been laid for the first time in USA in the case of RE Celia in 1990 that smell marks are considered to be a Trademark and when we talk about registrability again WPO has given its guidelines about the same and has said that it can be registered. Coming down to protection given to Non Traditional Marks in USA and India both the countries have different perspective about the same. In USA the Lanham Act, 1946 gives protection to such marks. And in India it is considered under Trademark Act, 1999.
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