One of the initial questions many clients have when it comes to protecting their most valuable intellectual property assets goes something like this: “Can I get a trademark for this?”. Like a stereotypical trademark lawyer (okay, like a stereotypical “fill-in-the-blank” lawyer), I usually answer questions like that with another question. Actually, I usually respond with more than one question, but one of the first questions I ask is, “What goods or services do you intend to use the proposed trademark with?”. One of the most important reasons for asking that question at the outset is that the difference between (i) a trademark that is “merely descriptive” of the goods or services with which it will be used and (ii) a trademark that is “distinctive” is frequently the difference between a refused trademark application and a registered trademark.

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.