I Can Name that Brand in Three Notes: Non-Traditional Trademarks for Traditional Goods

Abstract

People are exposed to trademarks on a daily basis. Trademarks are a part of everyone’s everyday life. Trademarks are used on clothing, food, entertainment, cosmetics, etc. Unlike other aspects of law, there is no minimum educational requirement or level of sophistication to understand and/or recognize what a trademark is and how it relates to the goods and/or services with which it is used. Kids can readily recognize a brand from a young age, e.g., FISHER-PRICE toys. Teens recognize the well-known brands, e.g., COKE for soft drinks and NIKE for sports shoes. Along with these words that are used as trademarks, brand owners also use stylized lettering or designs. COCA-COLA uses stylized lettering for their soft drinks and Nike utilizes a Swoosh design on its sports shoes. These designs are also well recognized as trademarks by the general public. What people are less familiar with are the non-traditional marks that companies use to distinguish their goods and/or services from those of their competitors. One of the most common is the use of color. Other non-traditional types would be the non-functional shape of the goods or packaging for the goods; sound, usually in the form of musical notes; texture, the feel of a product or label therefor; finally, smell. All of these non-traditional trademarks need to be handled in a particular manner in order to ensure that rights are established and, once perfected, are not lost by misuse. Because a trademark identifies the source of the goods and/or services by the very nature of what a trademark is, words and designs are not the only manner of identifying the source. An identification can be made based on many different factors, all of which fall under this “identity of source” definition.