Brand Wars: The rise of the unconventional trade marks

Brands are going above and beyond names, logos and slogans

It’s the end of a long day. You’ve earned a glass of vino. You head to the bottle shop to pick up a drop on your way home. But the quick trip to the bottle-o is anything but. Have you seen how crowded the shelves are nowadays? There are hundreds of brands shaking their money maker vying for your attention.

We’re not just talking wine brands here. Any product or service in any industry these days is competing for love and devotion from consumers — it’s an all-out brand war. With competition at such a fierce level, brands are getting more creative about how they make their mark in the hearts and minds of consumers everywhere.

Brands are going beyond brand names, logos and slogans. There are so many different types of brand assets that can serve as added touch points to enhance the brand experience for consumers. Welcome to the world of non-traditional trade marks.

Traditional trade marks

Under Australian trade mark law, the legalese definition of a trade mark is:

“…a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person

And a sign can include one of, or a combination of the following:

“…any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent

The real-world translation: a trade mark is a way for you to carve out an identity for your business in the marketplace. These can serve as visual or verbal identities for folks to recognise and differentiate your business, product or service. 

Names, logos, slogans and tag lines — these are the traditional trade marks that come to mind for most people and businesses when they think about brands and brand assets.

Non-traditional trade marks

The broad legalese definition of what can form a sign means that anything and everything could potentially be a trade mark. Colours, shapes, aspects of packaging, sounds, scents, movements, tastes, holograms and textures – these are often referred to as non-traditional trade marks.

These non-traditional marks are subjected to the same examination criteria as traditional trade marks. Often the biggest hurdles non-traditional trade marks face is around the issue of distinctiveness. Don’t forget, trade mark registration provides a party with exclusive rights to use that trade mark in relation to certain products and services. Regardless of the form the trade mark may take, if it’s something that is commonly used, or is clearly required for use by others, it will lack distinctiveness to function — and be registered — as a trade mark.

Colour marks

When you think of colour trade marks, the obvious one that comes to mind is the Tiffany Blue. The colour is a registered trade mark for jewellery products, packaging and retail services. The colour was first used back in 1845 for the cover of Tiffany’s annual Blue Book publication. The company then began applying the colour to everything across its business — shopping bags, marketing material and of course their coveted jewellery boxes.

Other registered colour trade marks include:

  • Mattel’s “Barbie Pink” (Pantone 219C), for a whole laundry list of products;
  • Cadbury’s purple (PMS 2685C) for chocolate bars;
  • Christian Louboutin’s red soles (Pantone No. 18.1663TP) for ladies shoes;
  • Whiska’s purple (CMYK: cyan 40%, magenta 100%) for cat food;

A local Aussie beer company had tried to register the colour yellow (Pantone 142) for beer. Not surprisingly their application fell flat because, well every beer is yellow. Nice try guys.

Shape marks

Trade marks come in all shapes and sizes – especially shape marks. Shape marks can be registered as trade marks provided they’re not commonly used or have a purely functional purpose:

  • The building blocks of the beloved LEGO brand are the building blocks themselves. The rectangular building block and basic Lego man figurine are both registered as shape trade marks;
  • You can spot a Toblerone chocolate bar from a mile away thanks to its unique triangular shape mark;
  • Easter is still a little way off but that hasn’t stopped supermarkets from rolling out the Lindt bunnies. The shape of the bunnies combined with the gold foil, red ribbon and gold bell, form a sweet shape and colour mark.

Aspects of packaging

They say not to judge a product by its cover, but let’s face it we all do when it comes to packaging. Aspects of packaging can be shapes, colours or a combination of both:

  • Ever see those bananas with coloured waxed tips? That’s a registered trade mark of Aussie farmers Pacific Coast Eco Bananas. The company has successfully registered its trade mark not just for bananas but any wax tipped fruit or vegetable. How’s that for an a-peeling trade mark?;
  • The yellow lid and label, together with the contrasting brown coloured jar — happy little Vegemite’s everywhere will know a jar of Vegemite when they see one;
  • Meanwhile in the US, cult-street wear brand Off-White has been trying to register its red zip tie as a trade mark since 2018. But the USPTO has so far knocked it back on the basis that it’s a functional and non-distinctive shape. 

USPTO: Off-White zip tie

Sound marks

Earworms. That’s what advertising jingles and sounds are engineered to be and do. The moment you hear it, you’ll know the brand, product or service. Sounds marks are proving just as effective as visual trade marks:

  • The Netflix sound that plays when the title screen appears, that’s a registered trade mark and also signifies the start of a binge watching session:

  • Ah McCain (Ping) You’ve Done it Again — no the “Ping” is not a typo. This is the description of the sound trade mark of the world’s largest food manufacturer:

  • When you hear the Bunnings tune, you know it’s time to head to your local store for a snag:

Scent marks 

Certain smells can evoke nostalgic memories of people, places and events. Scent trade marks can be a powerful way for brands to anchor themselves in the minds of consumers. Get a whiff of these scented brands:

  • In 2018, Hasbro registered the smell of Play-Doh as a trade mark. The company even sent a few tubs of Play-Doh to the USPTO so the Examiner could huff all the Play-Doh they wanted. The scent mark is described as:

“…a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough

  • In Canada, Crayola is attempting to register the smell of its crayons as a trade mark. Here’s what they describe the scent as:

“…a unique scent of a pungent, aldehydic fragrance combined with the faint scent of a hydrocarbon wax and an earthy clay

In Australia, there are only currently two registered scent trade marks: one being eucalyptus for golf tees and the other is cinnamon for furniture.  

Movement marks 

Motions are another way for brands to capture the attention and emotions of consumers.

  • Oh, What a Feeling — and a movement. Toyota have famously registered its “jump” as movement trade marks for cars.

And guess what mark this is: 

It consists of a man wearing sunglasses and a black waistcoat over a white T-shirt with his right hand holding grains of salt. The man raises his arm and opens his hand to release the grains of salt so that they are sprinkled onto a piece of meat on a table or bench below.”

Otherwise known as SaltBae. Yes this is a registered movement trade mark for a range of clothing, food products and hospitality services.

Australian Trade Mark Database: Registration No. 1840549

Taste marks

Taste is a hard one to capture and protect as a trade mark. Taste generally serves a practical purpose and consumers only generally taste a product after they purchase it — so it’s difficult for taste to be a unique means of identifying a product.

Here in Australia, a pharmaceutical company had attempted to register a peppermint flavour for a medicinal product. The application didn’t pass the Trade Mark Office taste test. 

Tips to protect non-traditional trade marks

If you’re thinking of developing or protecting a non-traditional trade mark for your brand, here’s some things to consider: 

  • Is your unconventional mark is actually something unique? Do other people use or need to use the same or similar mark?
  • Remember to use the trade mark as much as possible. Also ensure your use is consistent with what you intend to register and protect. When applying to register a non-traditional mark, chances are you may need to put in some additional elbow grease to convince an Examiner and show evidence of your use of your mark.
  • Can your trade mark be represented either graphically or accurately described? Where a trade mark contains or consists of a sign that is a colour, scent, shape, sound or an aspect of packaging, or any combination of these features, the application for registration will need to include an accurate description of the mark in the application.

It can often be long-term game plan to attain an exclusivity status with non-traditional trade marks. Most of the examples above have been in use, consistently, for many years. Building brand equity over time has often helped these trade marks obtain registration. Just remember: Tiffany’s wasn’t coloured in a day.

Looking to protect your brand assets, both traditional and non-traditional? We can help.

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