Non-Conventional Trademarks for Start-ups

Did you know that the shape of the Heinz Ketchup bottle is a registered trademark? Similarly, the Lilac colored packaging is a registered trademark of Kraft Foods for its Milka chocolates. These are examples of non-conventional trademarks, which include tangible marks like color, shape and texture, and intangible marks like smell and taste.

Applicability and Validity of non-Conventional Trademarks

Over the years, intellectual property has transcended into a new and mature understanding of Trademarks, breaking away from traditional confines that only dwelled in words, logos, symbols, numerals, pictures and a combination thereof. This branch of intellectual property, based on shape, single color, smell, taste, texture, is still in the process of maturing, with laws on the same still debated.

Whether the mark is conventional or unconventional, the mark must be unique and distinctive to warrant protection under a country’s intellectual property laws. Apart from being distinctive and unique, the mark must also be easily recognizable by itself, without additional information. Let’s look at a few examples:

The shape of Toblerone’s Pyramid shaped bars is easily recognizable on its own, without the aid of the name, logo or product packaging. Toblerone’s parent company Mondelēz owns the shape mark for the product in the United States. Similarly, Coca-Cola's contoured bottle and the conical shape of Hershey’s Kisses all have valid trademark registrations. Colors can also be trademarked, like Cadburys distinctive purple colored packaging, Tiffany’s iconic robin-blue packaging, McDonald’s brand colors, and Christian Louboutin red-soled shoes.

Note that, in each of the examples, the marks are distinctive and act as recognizable identifiers of the product source. This is an essential characteristic of Trademarks, defined under most trademark laws around the world. Without meeting these crucial conditions, it’s impossible to get a trademark registered. This essentiality makes registration of non-conventional trademarks extremely difficult, even for well-known brands.  

Alternative Routes for Small Business

If the shape/ pattern of your product are important elements of your brand identity, there are others ways to protect them apart from non-conventional trademark. If you have a new product and want to claim exclusive use over aesthetic characteristics such as patterns, shapes or colors combinations, it can be obtained through industrial design protection, also called a design patent or design registration in some countries. To qualify for protection as an industrial design, the shape must be unique, new and original. While technical features don’t receive any particular protection, the shape/patterns can be secured. Such design patents, stop competitors from manufacturing similar products.   

Often new businesses will choose to register the design of their product pertaining to a particular shape, or pattern. Once the brand grows, and the products acquire distinctiveness through use, (becoming easily recognizable) companies will apply for three-dimensional trademark registration.

Figurative Trademarks

The human brain processes pictures, graphics and other visual elements faster than words. That is why when customers go to supermarkets, they first orient themselves to the graphical presentations and color elements. Brands theorists have recognized the importance of visual mediums in directing positive customer attitudes. Over the years, companies decided to gain exclusive claim of their logos, symbols, design, shape, pattern, colors through trademark registration. Sound has also become an important brand element. Research suggests that sounds can create strong emotional associations that in-turn affect human behavior. The United States has several examples of registered sound trademarks such as Yahoo’s Yodel and Twentieth Century Fox’s theme tune of drums, strings and trumpets.

Future of Non-Conventional Trademarks    

Non-traditional trademarks are a whole new spectrum of branding for new and upcoming businesses, and it helps brands create unique identities and increase their brand recall. In a crowded business world, unique and distinctive identities matter.

So, having a trademark over unique characteristics such as the scent of a fragrance, the colors of product packaging, or the theme music of a brand, might be a way to stand apart. Wouldn’t it? Give it some thought.

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