When we think of trademarks, logos and brand names usually come to mind. But what about the other sensory elements that contribute to brand identity? Can catchy slogans, the signature chime of an ice cream truck, or the evocative scent of a new car be protected under trademark law? The answer is yes, though the process differs somewhat from traditional methods.
Unconventional Trademarks: A Growing Trend
Traditionally, trademarks have focused on visual elements that readily identify the source of a product or service. However, with the increasing importance of brand experience across all senses, companies are seeking protection for non-traditional trademarks. Here are some examples:
Slogans
Catchy phrases like Nike's "Just Do It" or McDonald's "I'm Lovin' It" can be trademarked to prevent competitors from using similar slogans that might create consumer confusion.
Sounds
Audio trademarks include the MGM lion's roar or the distinctive jingle of an advertisement. These protect the unique sounds associated with a brand.
Smells
The specific scent of a new car interior or a particular brand of perfume can be trademarked, though the process is more complex due to the challenge of precisely describing a scent.
The Legal Hurdles: Distinctiveness is Key
While unconventional trademarks are recognized, obtaining protection is not as straightforward as registering a logo. The key factor is distinctiveness. Unlike a logo, which is inherently unique, a slogan, sound, or smell may already exist or be easily replicated. Here’s what trademark offices consider:
Inherent Distinctiveness
Is the element inherently unique and not merely descriptive? For instance, "The Speedy Pizza Delivery Company" wouldn't be a distinctive slogan, while "Papa John's Better Ingredients. Better Pizza." might be.
Acquired Distinctiveness
Even if not inherently distinctive, evidence may show that the element has become associated with a specific brand through extensive use and consumer recognition. For example, the red color associated with Coca-Cola wasn't inherently distinctive initially, but over time, it became strongly connected to the brand.
The Trademark Registration Process
The process for registering unconventional trademarks generally follows the same steps as traditional trademarks:
Trademark Search
Conduct a thorough search to ensure the element isn’t already trademarked by another company.
Filing the Application
File an application with the trademark office, specifying the type of trademark (slogan, sound, smell) and how it is used.
Examination and Approval
The trademark office will examine the application and may request additional information or evidence of distinctiveness.
Protecting Your Brand Identity
While obtaining trademark protection for unconventional elements requires more effort, it's a valuable strategy for brands seeking a holistic approach to brand identity. By securing trademarks for slogans, sounds, and even smells, companies can create a truly multi-sensory brand experience that is legally protected from imitation.