When most people think of trademarks, they picture brand names and logos. But modern trademark law extends far beyond traditional word marks and design marks to protect a wide variety of non-traditional trademarks, including sounds, scents, colors, shapes, textures, and even holograms. These unconventional marks can be among the most powerful brand identifiers in existence. PerspireIP helps forward-thinking businesses identify and protect non-traditional trademark assets that their competitors may not even realize can be protected.
What Are Non-Traditional Trademarks?
Non-traditional trademarks are marks that fall outside the conventional categories of word marks, design marks (logos), and composite marks. They protect sensory elements of commercial identity — how a brand sounds, smells, feels, or moves. While these marks face higher hurdles to registration than conventional marks, they can be extraordinarily valuable when successfully registered because they are inherently distinctive in ways that word marks often are not.
The Lanham Act’s broad definition of a trademark — any word, name, symbol, or device that identifies and distinguishes the source of goods or services — has been interpreted by courts and the USPTO to encompass these non-traditional categories. The key is that the mark must function as a source identifier in consumers’ minds.
Sound Marks
Sound marks are among the most recognizable of all non-traditional trademarks. Sound marks protect distinctive audio sequences, musical jingles, or sound effects that consumers associate with a specific brand. Famous examples include the NBC chimes, the MGM lion’s roar, the Intel four-note audio signature, and the AT&T Sound Logo.
To register a sound mark with the USPTO, applicants must submit an audio file of the sound and a written description of the mark. Sound marks face the same requirements as other non-traditional trademarks: they must be distinctive (or have acquired distinctiveness) and non-functional. A sound that is functional — such as an alarm buzzer indicating danger — cannot be protected as a trademark.
- The NBC three-note chimes are one of the earliest registered sound marks in the US
- The MGM lion’s roar has been protected as a sound mark
- The Harley-Davidson potato-potato exhaust sound was famously the subject of an unsuccessful trademark application
- Law firm Louboutin’s red sole case showed that sensory marks face unique legal challenges
Scent Marks
Scent marks protect distinctive fragrances that function as brand identifiers. Scent marks are extraordinarily rare because scents are inherently difficult to describe with precision in a trademark application, and most scents in commerce are functional (perfume is sold for its scent, making the scent functional). The first and most famous scent mark in the US is the floral fragrance reminiscent of plumeria blossoms applied to sewing thread, registered by Clarke International.
For a scent to qualify as a trademark, it must be non-functional and distinctive. A company that sells scented candles cannot trademark the scent of those candles because the scent is the product itself — it is functional. However, a retail store that applies a distinctive signature scent throughout its locations to create a brand experience might have a valid scent mark claim if the scent has come to identify the store in consumers’ minds.
Motion Marks
Motion marks protect distinctive moving images or animated sequences that identify a brand. The Lamborghini scissor doors, the distinctive animation of a brand’s logo, and specific gesture sequences used in commercials can all potentially qualify as motion marks. Columbia Pictures’ torch lady, shown as an animation at the beginning of Columbia films, is an example of a protectable motion mark.
To register a motion mark, applicants must submit a series of images (like frames from an animation) showing the movement, along with a written description of the motion. Motion marks are increasingly important in digital media environments where animated brand elements are common.
Texture Marks
Texture marks protect the distinctive tactile feel of a product or its surface. While rare, texture marks can be powerful identifiers in industries where touch is an important part of the consumer experience. The velvet-smooth texture of a luxury product’s packaging, or the distinctive feel of a particular type of material associated with a brand, can potentially qualify for texture trademark protection if the texture has acquired distinctiveness as a brand identifier and is non-functional.
Hologram Marks
Hologram marks protect distinctive three-dimensional images that appear on products, typically for security or aesthetic purposes. Some financial instruments, credit cards, and luxury goods use proprietary hologram designs as brand identifiers. Hologram marks can be registered as trademarks if they meet the distinctiveness and non-functionality requirements.
Challenges in Registering Non-Traditional Trademarks
Non-traditional trademarks face several unique challenges in the registration process. The most significant challenge is demonstrating functionality. Under the functionality doctrine, a feature that is essential to the use or purpose of the product cannot be protected as a trademark regardless of how distinctive it has become. This doctrine eliminates protection for most scents (because scent is typically the product itself) and many sounds (because sounds are often inherently communicative rather than source-identifying).
Another challenge is the requirement that the mark be capable of graphic representation in the USPTO’s registration system. While the USPTO has become more flexible in accepting audio files for sound marks and image sequences for motion marks, non-traditional marks must still be described and depicted in ways that make the scope of protection clear and definite.
Building Acquired Distinctiveness for Non-Traditional Marks
Because most non-traditional trademarks cannot be considered inherently distinctive, building a record of acquired distinctiveness is essential. This means consistent, prominent, and long-term use of the non-traditional element as a brand identifier, substantial advertising investment that promotes the element as a brand signifier, and evidence of consumer recognition through surveys, testimonials, and media coverage.
PerspireIP works with clients to develop strategies for building acquired distinctiveness for non-traditional marks from the early stages of brand development. The sooner you begin using and promoting a non-traditional element as a brand identifier, the sooner you can build the evidence needed to support registration.
Non-Traditional Trademarks in the Global Marketplace
The protection of non-traditional trademarks varies significantly across jurisdictions, creating challenges for brands seeking to protect unconventional marks internationally. While the USPTO has developed reasonably clear frameworks for sound marks, color marks, and trade dress, other countries’ trademark systems are less welcoming of non-traditional marks. Understanding these international variations is essential for building a globally consistent brand protection strategy around non-traditional trademark assets.
The European Union has embraced non-traditional trademark protection through the EU Trade Mark Regulation, which was revised in 2017 to remove the requirement that marks be capable of graphical representation. This revision opened the door to registration of sound marks using audio files, motion marks using video files, and other marks that are difficult to represent in two-dimensional images. Many EU member states have followed suit, making Europe a relatively receptive environment for non-traditional trademark registration.
China, Japan, South Korea, and other major Asian markets have also developed frameworks for protecting non-traditional marks, though the specific requirements vary by jurisdiction and by mark type. Sound marks are registrable in China, Japan, and South Korea with appropriate audio file submissions. Position marks — marks defined by a specific location on a product — are recognized in some jurisdictions but not others. PerspireIP works with international IP counsel to navigate these jurisdiction-specific requirements for clients seeking global protection of non-traditional trademark assets.
For businesses building brands around non-traditional trademark elements — a distinctive sound, an unusual color combination, a recognizable motion or animation — developing a global protection strategy requires careful jurisdiction-by-jurisdiction analysis. PerspireIP provides comprehensive international non-traditional trademark counseling, helping clients identify the jurisdictions where protection is available, determine the requirements for obtaining that protection, and develop a filing strategy that achieves the broadest possible coverage at reasonable cost. Contact PerspireIP today to discuss international protection for your non-traditional trademark assets.
Building a Non-Traditional Trademark Program
For businesses that want to develop a comprehensive approach to non-traditional trademark protection, building a structured program around these unconventional assets is the most effective strategy. A non-traditional trademark program begins with an audit of your brand’s sensory elements — the sounds, scents, textures, motions, and other sensory features that consumers associate with your brand — and assesses each element for trademark potential.
Elements that are already highly distinctive and strongly associated with your brand should be prioritized for immediate trademark registration. Elements that have potential but have not yet achieved the level of acquired distinctiveness required for registration should be placed on a development track — a planned program of promotion, consistent use, and evidence gathering designed to build the consumer recognition needed to support future registration applications. Elements that appear functional should be documented as known risks and periodically reassessed as the law in this area continues to develop.
A robust non-traditional trademark program also includes monitoring and enforcement components. PerspireIP monitors for unauthorized uses of clients’ non-traditional trademark elements — including uses of similar sounds in advertising, similar color combinations in competing products, and similar motion sequences in brand animations. When infringement is detected, we advise on the appropriate enforcement response, which may include cease and desist letters, USPTO opposition proceedings, or federal court litigation depending on the severity and commercial impact of the infringement. Contact PerspireIP today to assess your non-traditional trademark assets and develop a protection strategy tailored to your brand’s unique sensory identity.
Conclusion
Sound marks and other non-traditional trademarks represent the cutting edge of brand protection strategy. While they face higher registration hurdles than conventional marks, successfully registered non-traditional trademarks can provide extraordinarily powerful and difficult-to-imitate brand protection. PerspireIP has the expertise to evaluate your non-traditional trademark assets, develop registration strategies, and build the evidence record needed to achieve protection. Contact us today to explore whether your brand’s distinctive sounds, scents, or other sensory elements qualify for trademark protection.