15 Oct Using Nontraditional Trademarks to Protect Your Brand

Many companies register a trademark to protect their branding and help them grow their market share. Traditionally, registered trademarks protect a company’s logo and their business name. However, more and more companies have been registering nontraditional trademarks that protect things like smells, sounds, colors, and other parts of their branding. You have likely heard of some of these nontraditional trademarks. Hasbro, for example, recently registered a trademark on the distinctive smell of Play-Doh. Hasbro proved to the U.S. Patent and Trademark Office (USPTO) that Play-Doh’s scent was truly distinctive and that customers associated that particular scent with that particular product.

What does this mean for your business? As marketing strategies evolve, it may be time to consider whether your business needs a nontraditional trademark. Do your products have a unique color, motion, texture, scent, or sound? If so, you may be able to better incorporate those distinctive characteristics into your branding by trademarking them. The trademark registration process is complicated but can have a huge return on investment for your brand. Not only does a registered trademark help you grow your brand, it always protects it from misuse by competitors.

Why Use a Nontraditional Trademark?

Building your brand is the cornerstone to having a successful business. A company may have a fantastic product or service, but if consumers are not aware of it, the business could fall apart. Your branding is important because it helps your customer base associate your products with your company (as opposed to associating your products with a competitor). Nontraditional trademarks can help you expand your branding, which creates more opportunities for your customers to gain associations with your product. Obviously, the more your customers associate with your brand, the more likely they are to buy your goods and services. Another nontraditional trademark example: UPS has trademarked the distinctive brown it uses in its branding. When its customers see that particular color, they associate it with UPS, which expands the company’s marketing reach.

There are no set categories for nontraditional trademarks. If you are thinking about whether you can register a nontraditional trademark, be creative! Some common examples of unconventional trademarks include:

• Scents
• Sounds
• Colors
• Flavor/taste
• Textures
• Product configurations
• Motion (such as computer animation)

When considering whether to register a nontraditional trademark, think about what makes your business branding distinctive. Do you use a particular color or shade in your product offerings? Does your product have a particular non-functional texture or configuration? If so, those unique features may qualify for trademark registration.

Qualifying for a Trademark

According to the USPTO, all trademarks, conventional or otherwise, must “identif[y] and distinguish the source of the goods of one party from those of others.” In other words, the purpose of a trademark is to help companies differentiate their products from their competitors’. The distinctiveness of the mark is key to successfully registering any trademark. To successfully register your trademark, consumers must be able to distinguish your branding, and therefore your products or services, from other companies’. Regardless of whether you want to register a traditional trademark or a nontraditional one, it is important that your branding stands out in a crowd.

Hasbro successfully registered Play-Doh’s scent as a trademark because it was able to prove that the scent was truly distinctive from the scent of competitors’ products, and that customer recognized that distinction. If you want to register a nontraditional trademark, such as a sound for instance, the USPTO will require you to prove that your product has acquired distinctiveness. In other words, your trademark application must show that your customers associate your product with your business because of the associated sound it makes.

You will also have to prove that the sound (or color, texture, scent, etc.) is not a functional part of the product. For example, the USPTO has rejected trademark applications from air freshener companies seeking to trademark the scent of their product because the scent is at the core of the product’s functionality. So, if your product is a musical instrument, you likely would not be able to trademark the sound it creates since that is the very function of the product. However, if your musical instrument had a unique texture or configuration that had nothing to do with the functionality, you may be able to trademark that feature. It is important to note that some companies pursue a trademark and a copyright or patent on a particular product feature. A skilled intellectual property attorney can help you explore the intellectual property options available in your case in order to further protect your brand.

Protecting Your Brand with a Nontraditional Trademark

No matter what trademark you seek to register, it is important to rely on the help of an experienced intellectual property attorney. Using scents, tastes, textures, and other non-traditional marketing tools can help expand your market reach and distinguish your brand. It is important to protect your growing brand by filing a trademark, which gives you legal protections against infringement from other companies. Now is the time to consider how registering a nontraditional trademark can help your business.

The popularity of nontraditional trademarks is increasing; however, these trademarks are still the exception rather than the norm. Trademark law was intended to protect a company’s logo, slogan, product name and/or service offering. Of course, many businesses rely on much more than their name and logo to build their brand. The law is beginning to catch up with these evolving business and marketing practices. As trademark law continually evolves, you may have an opportunity to build your brand further through the use of nontraditional trademarks. Registering any trademark, especially a nontraditional one, can be complex and time-consuming. Instead of focusing on the legal process by yourself, call The Brand Protected® for advice. Our firm can navigate the registration process on your behalf so that you can spend your time and effort focusing on your business.