Can I Get a Trademark for That?
You’ve probably wondered if you could get a registered trademark for a clever phrase you blurted out. Or maybe it was a memorable name for a new product or business or a logo, symbol, or design you created? These are the types of identifiers most of us usually think of as being something that can be protected as trademarks. Let’s call them the “traditional” types of trademarks.
Did you know that you may also be able to get a trademark protection for a variety of less “traditional” types of marks? It might to news to some that among the different types of registrable “non-traditional” trademarks are color and product shape and packaging? And unless you are an experienced trademark attorney or share a home with one, you probably don’t know that you can get a trademark registration for a smell, a sound, and motion as well.
While you may be asking yourself how can a sound or smell be a registered trademark, if we consider the purpose of trademark protection, it will make sense (no pun intended). The reason why trademarks are protectable is because they designate the source of origin of the goods and/or services with which they are used.¹ In doing so, trademarks serve the important public purpose of avoiding consumer confusion and indicating a certain degree of quality, reliability, or other characteristic of the goods and/or services with which the mark is used.
To briefly illustrate the above, the phrase “JUST DO IT” is a registered trademark of Nike, Inc. for a variety of products including footwear. The phase is a registered trademark because it is an indicator to the consuming public that any footwear advertised and sold using the “JUST DO IT” trademark is a product manufactured by Nike, Inc., the footwear’s source of origin. As such a designation of the source of origin of the footwear, the consuming public not only knows that the footwear is manufactured by Nike, Inc. but also that the footwear is of a certain quality, reliability, etc.
So, applying the above rationale for trademark protection, it makes follows that something like a product shape, a scent, a sound, a color, or even a motion could be registered as a trademark, i.e. a designation of source of origin of a good or service. Below are examples of some of these “non-traditional” trademark registrations.
¹ A designation of the source of origin of a good or service is the definition of a trademark. Contrary to common perception, a trademark does not identify a product or a service, per se. Instead, a trademark designates the source from which the goods and/or services originate, e.g. the manufacturer of the goods or the provider of the services.
Shape
Product shapes that have been found to identify the manufacturer of the product to the consuming public include the distinctive shape of the chocolate kisses manufactured by Hershey Chocolate & Confectionery LLC and the three dimensional “rooster tail” spray of water issuing from the rear of a jet-propelled watercraft manufactured by Yamaha.
Scent
For scent marks, Hasbro owns a trademark registration for the familiar smell of its toy modeling compound commonly known as Play-Doh, and Power Plus Lubricants owns separate registrations for the grape and strawberry scents of its motor fuels and lubricants.
Sound
NBC has a sound trademark registration for its three chimes in the G-E-C notes and MGM owns a registration for its well-known lion’s roar. The University of Arkansas even has a sound trademark registration for its “Woooooooo. Pig. Sooey! Woooooooo. Pig. Sooie! Woooooooo. Pig. Sooie! Razorbacks!” chant.
Color
Speaking of college sports, Boise State owns a color trademark registration for blue artificial turf used in stadiums. Other examples of trademark registrations for colors include UPS brown for the transportation and delivery of personal property by air and motor vehicle and Owens-Corning pink for insulation.
Motion
Registered trademarks for motion include Lamborghini’s registration for the motion of its car doors and Peabody Management’s motion registration for the “March of the Ducks” held twice a day at the Peabody Hotel in Memphis.
While it’s not exactly common knowledge, it is true that trademark registration is available for a wide variety of designations of source of origin. If you have any questions about whether you can get a trademark registration for your traditional or non-traditional marks in order to optimize the value and competitive advantage realized by your marks, please contact Paul at paul@brightwiselaw.com.
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