Conventional vs. Unconventional Trademarks
Trademarks are used to distinguish the goods and services of one brand from other brands. The ability to determine the goods or services from those of other traders is the main purpose of any trademark. In addition, it aims to provide a unique sign that consumers will associate with a given brand, its characteristics, and its quality. Conventional forms of trademarks include:
Or combinations of one or more of these elements.
Besides these traditional kinds trademarks, there is a range of other forms of trademarks, such as:
Shape of goods;
and hologram marks.
These unconventional forms of trademark help protect specific features of products whose visual appearance has attained a distinct uniqueness and popularity, so much so that the public at large may recognize the product because of these features. It also provides the owner with a clear commercial advantage in manufacturing and selling those products and/or packaging.
Certain conditions are required to be fulfilled to register an unconventional trademark:
The trademark should be intrinsically distinctive.
The trademark should be able to distinguish a particular product from other products.
The trademark should be capable of graphical representation.
If there is sufficient proof of distinctiveness and a clear graphical representation, signs such as shapes, colours, smells, sounds, movement marks, holograms, and taste marks can enjoy trademark protection. This rule applies to the EU countries, the United Kingdom, the US, Australia, and Japan. Countries such as China and India currently recognise only certain kinds of non-traditional trademarks, such as three-dimensional (3D), colour-combination, and sound trademarks.
There are multiple examples of registered unconventional trademarks by well-known companies.
Successfully registered shape trademarks include the Manolo Blahnik shoe shape, the Longchamp Le Pilage bag, the packaging of a Toblerone chocolate bar, the 4-bar shape of the KitKat chocolate, and so on.
Some widely-known examples of registered sound trademarks include Audi 'heartbeat' sound logo, 'Intel Inside' musical jingle, Samsung ringtone, Renault 'Passion for life,' Nissan 'Innovation that excites' sonic logo, Netlfix sound logo, Nokia tune, BMW sound logos, and so on.
When it comes to registered color trademarks, some prominent examples are T-Mobile's Magenta, Lilac of Milka-chocolate, Blue of Tiffany and Co., Orange of Fiskars scissors, Orange in Reese's, Brown of United Parcel Service, and so on.
Challenges and Opportunities
The process of registering these trademarks can be significantly more difficult, as they may need to be supported by evidence of use to achieve registration. You must show that the public has come to identify certain product aspects with your particular goods or services. While there are cases of successfully registered shape and sound trademarks, the probability of registering the touch/texture and hologram trademarks seems to be very low or negligible as such trademarks may not be graphically represented because touch/texture trademarks at present can be recognized by only human touch.
Still, the registration of non-traditional marks can provide a business with a useful advantage in the protection of important aspects of how it promotes its goods and services. Further gains of getting such a trademark registered include the ability to restrict or stop your competitors from using a product/service with confusingly similar features, differentiate your product or brand, and gain an exceptional reputation.