Overview of non-traditional trademarks in the world

According to the general theory, trademarks have three main functions: the function of distinguishing the commercial origin of products and services, the quality assurance function, and the advertising function.

Along with the rapid development of the economy and society, the quality assurance function and the advertising function among the three functions are given more importance than the prior. In the early stages of the use and protection of non-traditional marks, especially those that are not visually recognizable, the arguments against the protection of these types of marks were mainly based on the fact that these marks do not meet the standard of commercial indications of origin.

Most non-traditional marks do not overcome the obstacle of non-functional standard assessment. In addition, other senses besides visual signs are often affected by sensory impairment and confusion.

For example, sound signs, especially music, will depend a lot on the listener’s hearing and perception of music. Signs of smell or taste will usually be recognized differently because each person’s sense of smell and taste is completely different, in addition, smell and taste will also be changed due to the effects of objective factors such as time, humidity, temperature,…

In the world, developed countries such as the US and some European countries are the earliest places to use and have the earliest legal provisions to protect non-traditional trademarks. According to article 45, the Lanham Act in the US provides: “Any sign that meets the criteria of distinctiveness and is not functional may be registered as a trademark”.

Article 4 of the Community Trademark Regulations 1993 also stipulates that all types of signs that meet the criteria of distinctiveness can be registered as trademarks. It can be said that the definition of a trademark combined with the open listing method in the Lanham Act and the Community Trademark Regulations has created the premise for non-traditional trademark protection.

Visually recognizable non-traditional brands

Three-dimensional mark

A three-dimensional mark is a shape expressed in length, width, and height space. Such shapes can help consumers identify the commercial origin of the product or service. For example, the shape of an American Coca-Cola bottle, a flight attendant uniform of Korean Airlines, etc. have all been protected as three-dimensional trademarks.

Color mark

Color is also gradually being accepted by consumers as a sign to distinguish the commercial origin of a product. For consumers, identification by color is easier than other signs, and is also easier to grasp product information. For example, consumers perceive a water bottle with a red cover as Coca-Cola, or the dark blue color of Facebook, etc.

Motion mark

A motion mark brings together a series of distinctive movements to form a sign that distinguishes the commercial origin of a product or service. Motion marks are often computer generated, so they are often called moving image marks or dynamic marks. Motion trademarks are the opposite of static trademarks, which are also non-traditional trademarks. Compared with static marks, motion marks have the following characteristics: made up of moving elements; often shown on products with integrated electronic elements.

Non-traditional marks that are not visually recognizable

Sound mark

A sound mark is a mark created from acoustic signs, recognizable by hearing, which may be composed of a combination of monophonic sounds or scales, used to distinguish the commercial origin of products or services. In the 21st century, along with the rapid development of science and technology, many countries or regions have regulations to accept the protection of sound marks, such as Germany, USA, Australia, New Zealand, Hong Kong, China, Taiwan… Some other countries do not specify but they also do not exclude sound signs as trademarks.

Scent mark

A scent mark is a type of non-traditional mark that is recognizable by the sense of smell. The scent label can be made up of natural smells such as the smell of roses, the smell of fresh grass… In daily life, consumers may not remember the name of the product, but they can rely on some product features such as shape, packaging, color, and even scent to identify the product because there is a special relationship between scent and memory.

Tactile mark

A tactile mark is a mark that is identifiable by touches, such as a specific texture or pattern, that can distinguish the commercial origin of a product or service. This is a very special type of non-traditional trademark, only the US now accepts this type of trademark protection.

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