Taste and Texture as Trademarks: Testing the Limits of Trademark Subject Matter in India

Abstract

Trademark law has traditionally been concerned with signs that can be readily seen, reproduced and associated with a particular source. The changing nature of branding, however, has made this understanding increasingly difficult to sustain. Brands today are not experienced only through words, logos or packaging; they can also be recognised through sensory experiences. Against this background, this paper examines whether taste and texture can legitimately function as trademarks under Indian law. The question is particularly difficult because taste and texture are often inseparable from the product itself and may therefore be more than mere indicators of commercial origin.

The paper examines the position under the Trade Marks Act, 1999 and the Trade Marks Rules, 2017, with particular emphasis on distinctiveness, representation and the limits imposed by functionality. It argues that the absence of an express prohibition on sensory marks does not, by itself, make their registration practically or doctrinally straightforward. Taste raises concerns relating to subjective perception, reproducibility and the difficulty of establishing a clear and precise representation. Texture presents similar difficulties, particularly where the tactile quality contributes to the utility, comfort, durability or aesthetic appeal of a product. In both cases, the central question is whether consumers perceive the sensory characteristic as an indicator of origin or merely as a desirable feature of the product.

Drawing upon Indian law and comparative developments, the paper argues for a cautious but flexible approach. Sensory characteristics should not be excluded simply because they are perceived through senses other than sight; at the same time, trademark protection should not become a means of securing perpetual control over ordinary product features. The paper therefore proposes a framework based on source identification, objective representation, acquired distinctiveness and a strong functionality safeguard.