Unusual Trademarks Hiding in Plain Sight

Most people usually think of a trademark as a word, slogan or logo associated with a specific company, creative project, product or service (and often the quality of the products or services).  For example, some people strongly prefer consuming soft drinks labeled 220px-Pepsi_logo_svg  as opposed to coke-logo-1, while others would only buy tennis shoes marked with Nikeinstead of Adidas_Logoor logo_REEBOK_ICON_1 , and some may prefer this band  Rolling-Stones-Wallpaper-classic-rock-17732124-1024-768 to this one grateful_dead_bear-265x300.  However, a trademark can consist of almost anything that is used to identify and distinguish the goods or services of one entity from those manufactured, sold or provided by others. You might have a mark worthy of protection and don’t even realize it.  Perhaps your mark:

Sounds like a trademark…

There are registered marks for chimes, sayings associated with animated characters, and even theme songs.  Universal TV LLV has a registration that consists of “two musical notes, a strike and a rapid rearticulation of a perfect fifth pitch interval, which in the key of C sounds the notes C and G, struck concurrently” used in connection with the “entertainment services, namely, a series of on-going dramatic television programs”…although you probably know it better as the NBC Chimes.

Whether or not you eat carbs, you are likely familiar with the Pillsbury Doughboy.  If you’re reading this blog, you would likely recognize Yahoo!  And you might get excited when you hear this from your computer.  If you use a sound in connection with your products or services that (1) does not serve any functional purpose in connection with the products or services, (2) is not a natural by-product of the products or services, and (3) is not used by competitors or applicant’s industry in connection with the goods or services, you likely have something distinctive that consumers will associate with your products or services.  For more examples of sound marks, click here.

Smells like a trademark…

If Smead Manufacturing made apple cider, peppermint, vanilla, peach, lavender, and grapefruit scented lotion, they probably couldn’t protect the fragrance because it would be considered to serve a utilitarian purpose and be functional in connection with the product…but it’s a different story when those scents are used in connection with “office supplies, namely, file folders, hanging folders, paper expanding files.”  And, if you don’t like the smell of regular “medicated transdermal patches for the temporary relief of aches and pains of muscles and joints associated with arthritis, simple backaches, strains, bruises and sprains,” then you may want to try some that have “a minty scent by mixture of highly concentrated methyl salicylate (10wt%) and menthol (3wt%)”.

Looks like a trademark…

I don’t know of many women who wouldn’t immediately recognized a box or bag in a specific “shade of blue often referred to as robin’s-egg blue” as coming from the famous jeweler Tiffany & Co. The color pink for “foam insulation for use in building and construction” is registered to Owens-Corning Fiberglas Technology Inc. Of course, Coca-Cola has protected its iconic bottle designCoke_Bottle for decades…and the Oscar award statuetteAcademy_Award_trophyis also protected.

Feels like a trademark…

American Wholesale Wine & Spirits, Inc. has a mark which consists of “a velvet textured covering on the surface of a bottle of wine” for use in connection with wines.

Tastes like a trademark…????

Not yet…and potentially never.  The Trademark Trial and Appeal Board has observed that it is unclear how a flavor could function as a source indicator because flavor or taste generally performs a utilitarian function, and consumers generally have no access to a product’s flavor or taste prior to purchase.  In re N.V. Organon, 79 USPQ2d 1639 (TTAB 2006) (affirming refusal to register “an orange flavor” for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills,” on the grounds that the proposed mark was functional under §2(e)(5) and failed to function as a mark within the meaning of §§1, 2, and 45 of the Trademark Act.).

Obtaining registration for some of these more unusual marks (usually categorized as trade dress) are more likely to require a showing of evidence of “acquired distinctiveness” (proof that the mark has become adequately associated in consumers’ minds with the mark owner’s goods or services) than more traditional marks.  However, don’t let that discourage you.  By opening your mind and looking for marks outside of the traditional name, logo or slogan categories, you just may find a sound, color, scent or other sensory trigger that strongly appeals to your customers or fans and turns out to be something that helps you stand out from the crowd and gets you a step ahead of the competition.

 

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