When a business registers a trademark, it’s usually a logo, symbol, word, or phrase.
However, did you know that almost anything can be registered as a trademark?
Even things such as smells, sounds, and shapes can be registered, so long as they are distinct to a particular brand or product.
In the simplest sense, all a trademark does is claim a particular piece of branding so that other businesses can’t use it.
While the most common way to do so is to register a name or logo, over the past few years this definition has expanded to include several other things as well.
In this article, we’ll list 5 unusual things that you can register as a trademark outside of the conventional logos and words, and provide examples of each.
Hasbro toy company is the latest to successfully register a scent as a trademark.
The Play-doh scent, that familiar smell found in kids’ hair, under fingernails, and ground in household carpets everywhere received its own trademark in May of 2018.
We all remember the smell of Play-doh, and Hasbro wanted to make sure that nostalgic scent can’t be copied by another toy company.
Hasbro’s Play-doh is only one of a handful of active trademarks for scents registered with the United States Patent and Trademark Office (USPTO).
Some other examples are:
- Verizon’s “flowery musk” scent used in their stores.
- Brazilian shoe company Grendene’s bubble gum-scented jelly sandals.
- Manhattan Oil’s strawberry, cherry, and grape scented engine lubricants.
Just like with smells, registering a sound as a trademark can be difficult to do.
The company must prove that the sound is so unique to the brand that the customer automatically attaches the sound with that company.
However, more companies have successfully registered sounds as trademarks than smells.
Here are some familiar examples:
- The 60 Minutes ticking stopwatch
- Darth Vader’s breathing
- The Pillsbury Doughboy giggle
- The Aflac duck quack
- Homer’s “D’oh!”
There have also been several cases where the USPTO rejected sound-based trademarks.
For instance, Anheuser-Busch attempted to register the appealing sound of someone opening a can of Budweiser.
The USPTO refused, saying that opening a can of Bud sounds the same as opening any other pressurized beverage.
Harley-Davidson also tried unsuccessfully to register the sound of a Harley engine.
After several refusals by the USPTO, Harley finally withdrew its application.
Trademarking Product Shapes
To successfully register a shape as a trademark, a company must make the case that the shape is inherently distinctive of the product, and that the shape doesn’t serve a functional purpose (i.e. its sole purpose is aesthetics).
Toblerone vs. KitKat — As one example, Toblerone candy bar’s distinct triangle shape doesn’t serve any purpose in serving the chocolate, but the triangular packaging is distinctive of the brand.
Conversely, when Nestle tried to register KitKat’s rectangular, 4 bar shape, the USPTO denied their request.
They pointed out that when you buy a KitKat, you just see a rectangular wrapper. It’s not distinctive enough to qualify for a trademark.
Coca-Cola Bottles — The famous contour bottle we associate with Coke was designed and registered decades ago when new versions of cola began to compete with the iconic brand.
Pringles — The identifiable elliptical shape of a Pringles chip doesn’t serve any functional purpose, but adds to the aesthetics of the chip. For this reason, its unusual shape was successfully registered as a trademark.
Hershey’s Kisses — These chocolate treats have been around a long time. Hershey’s achieved a trademark for their kiss back in the 1920s.
There is a big difference between a company using a particular color set in their logo and claiming rights to an entire color.
In order to register a specific color as a trademark you need to be able to prove that the color is distinct enough that it can only be associated with your particular brand, such as in the examples we provide below.
Of all of the unusual trademark types, this is one of the hardest to receive.
Owens-Corning Pink – #D40F7D — Ever wonder why that insulation in your attic is pink? It’s because it came from Owens-Corning, and that’s their trademark color. In fact, they were the first company to register a color as a trademark back in 1987.
Tiffany Blue – #81D8D0 — This robin’s-egg blue has been associated with Tiffany Jewelry Company for over a century. When the company register the color in 1998 they were able to keep any other jewelry company from using Tiffany blue to market their jewelry.
Barbie Pink – #DA1884 — Everything Barbie is associated with the distinctive “Barbie pink” color. Other toys, especially dolls, must avoid advertising with that shade of pink.
UPS Brown – #301504 — Chosen because dark brown is associated with luxury and leather, UPS brown marks the large trucks that bring packages to homes across the country.
As one final unusual type of trademark, there have been a few cases that involve movement trademarks.
In order to register a trademark based on movement, that movement must be unique to the product and, similar to the colors above, serve no functional purpose besides identifying the brand.
For example, Lamborghini successfully registered a trademark for their signature upward door-opening motion on Lamborghini cars.
Similarly, Yamaha was able to register a trademark for the specific way the water sprays vertically from the back of Waverunners when they’re in motion.
Although it’s difficult and time-consuming, it’s certainly possible to register a trademark for any number of unusual things like sounds, colors, shapes, scents, and movements.
However, you should note that it takes large amounts of time and resources to convince the USPTO to grant trademarks on unusual features.
If you’re considering whether or not to register an unusual trademark, you should first speak with an experienced trademark lawyer who can help you with the details.
In some cases, there might be other options available to you, such as copyright protections or other forms of legally protected branding.