Creating an original name or logo for your brand is simply not enough if you want to distinguish yourself from the crowd where the market is overflowed with trademarks. Trademark proprietors attempting to create strong trademarks are compelled to look for more inventive solutions and therefore, say no to the traditional image of a figurative trademark. Smells, tastes and sounds can also successfully contribute to product’s marketing. Non-traditional trademarks have indeed a lot of potential.
Thus, what are these non-traditional trademarks and how do they differ from the traditional ones? A non-traditional trademark is a new type of mark that cannot be categorized as a traditional mark, which has been existing in IP world for a long time, e.g. word or figurative trademarks. The definition of a non-traditional mark includes all trademarks of original form, i.e. smell, sound, taste, texture or other form. Normally they are grouped into the following types:
- colour (or a combination of colours)
- shapes (three- dimensional)
- others (positional).
A colour is perhaps the most traditional mark from this category. Every part of the world perceives and remembers the colour easier than, for example, a text or a figurative element, therefore, it has become a conventional way to mark services or products. We often recognize our favourite product by its colour combination.
That many companies in the world seek to get exclusive rights to certain colours in this way protecting distinctive elements of products or services used in the market does not seem to be surprising. One of the successful colour mark registrations is MILKA, a chocolate product trademark that exclusively contain the colour purple (international reg.no. 644464). A lot of chocolate lovers would probably associate this colour with MILKA brand.
Active advertising of colours and their marked products is a great marketing mean that affects consumers whose decision which product to choose is based on colour rather than name.
Although colour registration seems advantageous, attempts to get exclusive rights to the colour or the combination of colours may lead to various problems. Firstly, the colour must have a distinctive feature. Further, the colour may not be functional, in the sense that other producers are forced to use it in order to be able to compete fairly in the market, e.g. gold for precious metals. In addition to this, technical difficulties may also arise, e.g. it may be difficult to depict the colour graphically without limiting it to one geometrical shape or to describe it accurately. The colour trademark also lacks a full scope of protection, i.e. when it comes to disputes, it may be difficult to define when colours are confusingly similar.