Introduction: Understanding Position Trademarks

A position trademark refers to the specific placement of a mark on a product, helping to distinguish it from other products in the marketplace. Unlike traditional trademarks, which may include logos or words, position trademarks focus on the location of a mark—such as a symbol, design, or logo—on a product.

WIPO’s Perspective on Position Marks

WIPO explains that position marks are generally classified as figurative marks. Additionally, a description of the placement of the mark (such as on a label, pocket, button, or stripe) in relation to the product is typically required.

If this description is clear and unambiguous, the mark will be considered graphically represented. The applicant may also need to specify the type of mark they are applying for.

These marks are determined by their specific position on a product. Therefore, any evaluation of their distinctive character—whether inherent or acquired through use—must be conducted on a case-by-case basis.

A graphic representation can include an illustration or drawing that shows the unique positioning of the mark in relation to the product, along with a written description.

Position Trademarks in the European Union

Starting in 2017, the EU introduced new categories of trademarks (TMs), including a separate category called “Position Mark.”

According to the EU TM Manual, a Position mark is defined as a trademark that relates to the specific way in which the mark is placed or affixed on a product.

When applying for shape and position marks, it’s important to keep a few key points in mind:

• Shape marks require clear images showing the object from various angles, using appropriate colors if necessary.
• Position marks require a visual depiction of where the mark is applied on the goods, typically using solid or dotted lines to indicate protected elements.

Descriptions should clearly mention the position and size of the mark in relation to the goods, ensuring they don’t broaden the trademark’s scope.

The EUIPO may request changes if descriptions are unclear or inconsistent with provided images. Clear and concise representations are crucial for legal certainty, as ambiguity can lead to objections.

Amendments are allowed but must clarify the scope without altering the essence of the original mark.

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Recognition of Position Marks under Indian Law

Under the Trade Marks Act, 1999, a trademark is defined as a mark that can be graphically represented and serves to distinguish one person's goods or services from those of others.

This definition encompasses position marks, which can be effectively illustrated through drawings that show their specific placement on a product.

Although the Act doesn't explicitly mention position marks, they are recognized as non-traditional trademarks due to their distinctive role in branding.

To qualify for registration, these marks must satisfy the general requirements of distinctiveness and graphical representation.

As branding evolves, it is expected that position trademarks will gain greater recognition in India through judicial interpretation and registry practices.

A notable example of a position mark is the ‘Arcuate Stitching Design’ featured on Levi Strauss & Co.’s denim jeans, which has been protected for its distinctive placement and brand recognition.

Case Study: Levi Strauss & Co. v. Imperial Online Services Pvt. Ltd. & Ors. (CS (COMM) 657/2021)

Levi Strauss sought a permanent injunction against the defendants for trademark and copyright infringement concerning its famous “Arcuate Stitching Design” used on denim products.

The defendants were accused of selling jeans with a similar stitching design on their website and e-commerce platforms. Despite assurances to stop, they continued infringing activities, prompting legal action.

Key Issues Before the Delhi High Court:

1. Whether the defendants’ actions constituted trademark infringement and passing off.
2. Whether the “Arcuate Stitching Design” qualifies as a protectable trademark under Indian law.
3. Whether the defendants violated their undertakings and the court’s interim injunction.

Court’s Findings and Ruling:

The Delhi High Court ruled in favor of Levi Strauss, recognizing the “Arcuate Stitching Design” as a well-known and distinctive trademark under Indian law.

The court:

• Issued a permanent injunction restraining the defendants from using any deceptively similar design.
• Ordered the removal of infringing products and images from all e-commerce platforms within 30 days.
• Directed the defendants to pay Rs. 4 lakhs in costs to Levi Strauss.
• Granted the plaintiff liberty to approach the court for future violations.

Legal Significance:

The court’s declaration of the “Arcuate Stitching Design” as a well-known mark reinforces protection for non-traditional trademarks, especially design-based identifiers on products.

Conclusion

Position trademarks play a vital role in branding by emphasizing the unique placement of marks on products, distinguishing them from competitors.

The Levi Strauss case highlights the importance of protecting such marks under Indian law, safeguarding brand integrity and consumer trust.

As brands continue to innovate in design and aesthetics, position trademarks will remain a powerful tool for maintaining distinctiveness and market exclusivity.