INTA - Nontraditional Trademarks

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Nontraditional Trademarks

1. What are "nontraditional" trademarks?

To answer this question, it is first necessary to establish the nature of “traditional” trademarks. The word "trademark" is defined in the trademark statutes throughout the world and the definition is not the same in all countries. Ordinarily, a mark will consist of a word, logo, or a combination of both. The word or words may be invented or may appear in dictionaries. A mark may also consist of letters, numerals, or combinations of both. A logo may be an abstract design, stylization or simple reproduction of everyday objects or images. These types of marks will be very familiar to the majority of consumers. However, there are many other, less familiar types of trademarks, which may be described as nontraditional trademarks.

2. What are the main types of nontraditional trademarks?

Appearance: This type of mark may include the color or combination of colors applied to the products themselves or to the packaging in which they are sold. It may be the graphical way in which the colors are represented or a combination of both. In the case of services, it could include the visual appearance, externally or internally, of a store or restaurant or the design of a menu card.
Shape: This type of mark may be a three-dimensional representation of the product itself, the container for the product, or the architectural design of a store or sign-post. It may be the shape of a label or tag and not simply the words or colors appearing thereon.
Sounds: This type of mark may be a jingle or any piece of music or other sound. It may be a short extract from a composition or an entire musical piece. In some cases, it may be a reproduction of an everyday sound, perhaps in an unusual circumstance.
Scents: In terms of the registration of trademarks, this type of mark is one of the most difficult to represent graphically. Many smells are associated, however, with a particular manufacturer. In some cases, such as perfume houses, the particular scent is also the product itself. In other cases, it is a scent applied or added to the product, not the natural smell of the product itself.
Taste: In many cases it will be difficult to distinguish between the natural flavor of a product and the recipe adopted by a manufacturer to distinguish its goods from those of competitors. The flavor of cola drinks is a good example. The manufacturers of such goods would certainly consider the flavor of their products as being a trademark of the company and the recipes are often closely-guarded trade secrets.
Touch: It is possible for products to be manufactured in such a way that the good or their packaging have a particular sensation to the touch, which can distinguish them from those of competitors. Sometimes, a particular feel will reflect the quality of the product rather than the origin, but this type of mark may include, for example, tissues that are particularly soft or moist or products that may be held in the hand more comfortably. It is common practice for some products to have writing in Braille applied to them. Similarly registrable features may be added to products.

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