Expanding Trademark Horizons: Slogans, Sounds, and Smells

Can catchy slogans, the chime of an ice cream truck, or the distinctive scent of a new car be protected under trademark law? The answer is yes, though the process differs somewhat from traditional methods.

The Rise of Unconventional Trademarks

Traditionally, trademarks have centered on visual elements that easily identify the source of a product or service. However, with the growing emphasis on comprehensive brand experiences, companies are now seeking protection for non-traditional trademarks. Here are some examples:

Slogans

Catchy phrases like Nike's "Just Do It" or McDonald's "I'm Lovin' It" can be trademarked to prevent competitors from using similar slogans that might create consumer confusion.

Sounds

Audio trademarks include the MGM lion's roar or the distinctive jingle of an advertisement, protecting the unique sounds associated with a brand.

Smells

The specific scent of a new car interior or a particular brand of perfume can be trademarked, though the process is more complex due to the challenge of precisely describing a scent.

Navigating Legal Challenges: The Importance of Distinctiveness

While unconventional trademarks are recognized, obtaining protection is not as straightforward as registering a logo. The critical factor is distinctiveness. Unlike a logo, which is inherently unique, a slogan, sound, or smell might already exist or be easily replicated. Here’s what trademark offices consider:

Inherent Distinctiveness

Is the element inherently unique and not merely descriptive? For example, "The Speedy Pizza Delivery Company" wouldn't be a distinctive slogan, whereas "Papa John's Better Ingredients. Better Pizza." might be.

Acquired Distinctiveness

Even if not inherently distinctive, evidence may show that the element has become associated with a specific brand through extensive use and consumer recognition. For instance, the red color associated with Coca-Cola wasn't initially distinctive, but over time, it became strongly linked to the brand.

The Trademark Registration Process

The process for registering unconventional trademarks generally follows the same steps as traditional trademarks:

Conduct a Trademark Search

Perform a thorough search to ensure the element isn’t already trademarked by another company.

File the Application

Submit an application with the trademark office, specifying the type of trademark (slogan, sound, smell) and its usage.

Examination and Approval

The trademark office will review the application and may request additional information or evidence of distinctiveness.

Safeguarding Your Brand Identity

Securing trademark protection for unconventional elements requires more effort, but it's a valuable strategy for brands seeking a comprehensive approach to brand identity. By trademarking slogans, sounds, and even smells, companies can create a multi-sensory brand experience that is legally shielded from imitation.