The following is an edited transcript of my video Sounds, Colors, Scents, and Other Nontraditional Trademarks
Non-traditional trademarks are those things that indicate the source of a brand, but are not brand names, logos, or slogans. And it’s one of my favorite topics to talk about because there’s so many exciting and interesting examples of different non-traditional trademarks. But, for the vast majority of businesses over time, they traditionally haven’t had a lot of need to protect non-traditional trademarks.
However, that is changing some, in my experience, as the barriers to create and promote these things become lower. And I think you’ll see what I’m talking about with these examples. I’m going to tell you today about a variety of different types of non-traditional trademarks and some examples of them. Keep in mind that protecting and registering them is possible, but there is a lot of nuance and special challenges in addition to all the normal application challenges that come into play. We’re not really going to go in-depth about those challenges today, but know that they’re there.
Buildings can be registered as trademarks. What I mean by that is the shape of a building, like the exterior shape of a building or the interior layout of a store or building. Examples of those interiors are the Apple Store has a registration for the layout of the store, and Chipotle has a registration for the common design themes that you’ll find in nearly every Chipotle. And that is one key in doing these things is, if it’s a one off, it’s going to be a lot harder to protect than if it’s something that’s consistently done by a brand.
Uniforms can be protected. A famous example of this is the pin stripes of the New York Yankees are a registered trademark. Many NFL football teams have registrations for their uniform color schemes, but uniforms that are not sports-related can also be protected. The uniform of a UPS driver is a registered trademark. And there’s a cool tech company, at trade shows, all of their salespeople and employees wear bright green neon ties with a black shirt. That configuration of a uniform is a registered trademark.
Colors can be registered. Just a color alone in connection with a specific product or service can potentially be registered. Well-known examples of this are, UPS, their color brown for package delivery services. They use it on the trucks, in the uniforms, in their advertising, in their logo, etc. That’s a registered trademark. The magenta color used by T-Mobile heavily in all of its advertising is a registered trademark.
Sounds can be non-traditional and registered trademarks. The NBC chimes are registered. Believe it or not, the sound made by a light saber in Star Wars, because they sell toy light sabers that make that sound, is a registered trademark.
Shapes can be registered. Shapes usually comes in the form of the shape of the product, if it’s a unique and not entirely functional shape, or in the shape of the product packaging. For example, the packaging of an Altoids tin is a registered trademark. Think about the way this translates to commercial and common uses. You’d think, “If I saw that tin and I didn’t know, I couldn’t read the writing on it, would I know that it was Altoids, or would I presume that it was an Altoids just based on the shape?” If that’s the case, then that shape is functioning as a trademark, because it’s telling you about who makes the product, where it comes from. That’s the whole purpose of a trademark.
Footwear designs can also be registered as trademarks. A lot of sneaker configurations, sometimes the soles, sometimes the stitching and layout of the whole top of the sneaker or shoe can be registered trademarks. Think about Air Jordans, think about Vans, and a lot of other footwear designs are now commonly registered as trademarks. A famous trademark footwear design example, non-traditional, is the Louboutin red sole shoes. There was a big dispute over that a couple years ago, I won’t go into it, but it’s a great example of the type of thing that can be registered and protected, but has challenges. Also, talking about fashion, the stitching on jeans pockets can be registered. Levi’s and many other jean companies have their special stitching designs on the pockets that don’t really serve a purpose other than to have some look, feel, or fashion element to them, and those different stitching designs can be registered as trademarks.
Scent is much less common than all these other already uncommon trademark forms, but smells can be registered. There’s not a lot of smells registered. I think it’s maybe between 10 or 20 smells that are registered. The most famous one is the smell of Play-Doh toy modeling compound often used by children. That scent is a registered trademark. Some of the other scent trademarks that are registered are often industrial. Fluids for machines or engines where they sometimes will add a scent to make it more attractive to the users, but the scent isn’t integral to the function of the fluid. Those are some of the other examples where scents have been registered.
Taste has not yet been registered. It’s hard to think about an example of a taste mark, where the taste wouldn’t be functional, but I’m sure someday there will be some sort of a taste trademark registration as brands keep evolving and boundaries keep getting pushed.
This video’s gone on long because I told you, I love this subject. I’m going to try to knock out the last few here. Lighting design is a really cool type of trademark registration. Basically, the way that buildings are lit up. Holiday Inn has a unique color and the way that the lights are shined, and what they’re pointed at in front of their hotels, that layout is a registered trademark. I think that’s really interesting and cool.
We’re getting now to really some of my favorite trademark registrations of all time, because they’re oddball and they’re fun to talk about. And they’re really unique. The band members Kiss have trademark registration for their makeup, for the configuration of their makeup on their faces when they perform. So, can a Kiss cover band wear the same makeup and get away with it, or would that be a trademark infringement? That might make a great law school final exam question, I’m not sure.
Mascots can be registered. The design, the three dimensional configuration of a mascot. Sports teams have mascots often, but there are also corporate mascots that do promotional events for all types of businesses, and there are many mascots that are registered at the trademark office. The Boise State football field has a blue turf. You may have seen this on TV. About a decade ago, they were really good and were on TV all the time. When you see the blue turf, you think of Boise State. They have a registration for that. Pretty cool, I think.
And now we get to the two most bizarre and interesting trademark registrations of all time, in my opinion. Coming in at number two is the marching ducks of the Peabody Hotel. That’s right. The Peabody Hotel is known for several things, one of which is, at an appointed hour during the day, several ducks who stay in the hotel are marched in a procession down the elevator through the lobby, I think around a fountain and back. And this is sort of an event at the hotel every day. And that event, that procession involving the ducks at the Peabody Hotel, is a registered trademark. It’s not easy to put that in a drawing or a description of the trademark, but they have managed to do it.
And then the number one in my opinion, wackiest most interesting trademark of all time, is a restaurant in Wisconsin that has a grass roof with goats grazing on it. And having goats grazing on your grass roof, for restaurant services, is a registered trademark owned by this restaurant. That’s a pretty unique one!
