CAN YOU TRADEMARK A COLOR OR SOUND? UNDERSTANDING NON- TRADITIONAL TRADEMARKS

INTRODUCTION

When we think about trademarks, logos, words, and symbols usually come to mind. After all, these are the most common types of trademarks used by companies to identify their products and services. But did you know that you can also trademark things that aren’t visual or verbal? Welcome to the world of non-traditional trademarks.

Non-traditional trademarks go beyond the conventional, offering businesses a way to protect unique brand elements that don't necessarily fit into the typical trademark box. In particular, two types of non-traditional trademarks that often intrigue companies are color trademarks and sound trademarks. But can these really be trademarked? Let’s take a closer look.

What Are Non-Traditional Trademarks?

A non-traditional trademark is any trademark that doesn’t fall into the standard category of a word, logo, or design. These can include:

• Colors
• Sounds
• Scents
• Shapes
• Textures
• Motion

Each of these elements has the potential to be trademarked, as long as certain conditions are met. Let’s break down how color and sound trademarks work in particular.

Can You Trademark a Color?

Yes, you can trademark a color, but it’s not as simple as just choosing a favorite hue. Color trademarks are granted only when the color has distinctiveness—meaning it is associated with a particular brand or product in the minds of consumers.

For example, the color Tiffany blue is trademarked by the luxury jewelry brand Tiffany & Co., and when people see that specific shade, they instantly think of the brand. Similarly, Coca-Cola’s red and UPS's brown have been successfully trademarked.

In order to successfully trademark a color, the applicant must prove:

1. Distinctiveness: The color must be closely associated with a specific brand. This usually requires evidence of long-term use and widespread recognition by consumers.
2. Non-functionality: The color cannot serve a functional purpose (i.e., it cannot simply be part of the product’s design to make it work better). For example, a bright red color for a fire extinguisher cannot be trademarked because red signals danger or urgency, which is essential to its function.
3. Secondary Meaning: This means the color must have acquired a specific, well-known meaning in the marketplace that identifies the product or service. For example, when you see the golden arches of McDonald’s, you think of fast food, not just the color yellow.

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Can You Trademark a Sound?

Yes, sound can also be trademarked, though it’s a little more unusual. A sound trademark involves a specific, distinctive sound that is linked to a particular product or service. Examples include:

• The MGM lion’s roar
• The Intel chime
• The NBC chimes

To qualify for a sound trademark, a company must demonstrate:

1. Distinctiveness: The sound must be unique enough that consumers immediately recognize it as coming from a particular source. In other words, the sound has to be so recognizable that hearing it immediately triggers thoughts of the brand.
2. Non-functionality: Just like color trademarks, a sound cannot be functional. It must be more than just a necessary part of the product or service. For example, a musical jingle used in commercials may be eligible for trademark protection, but a beep on a microwave to signal the end of cooking would not be.
3. Secondary Meaning: As with color, the sound must acquire a secondary meaning, meaning it has become tied to a specific company or product in the minds of consumers over time.

Why Are Non-Traditional Trademarks Important?

Non-traditional trademarks help businesses stand out in a crowded market. These trademarks can reinforce a brand’s identity, evoke emotional connections with consumers, and provide additional layers of protection to their intellectual property. For instance:

• A distinctive color can evoke feelings of luxury or trust, helping to create an immediate association between a color and a brand.
• A unique sound can create a sense of familiarity and recognition, which is especially important in industries where audio and visuals are key elements (think of video games, advertising jingles, and apps).

These types of trademarks also provide more ways for companies to secure their brand. Rather than relying solely on logos or taglines, businesses can broaden their trademark protection to cover all kinds of sensory experiences, further differentiating themselves from the competition.

Challenges in Trademarking Colors and Sounds

While non-traditional trademarks can be incredibly valuable, they come with their own set of challenges:

1. Difficulty in Proving Distinctiveness: Proving that a color or sound has acquired distinctiveness can be tough, particularly for new or emerging brands. This requires substantial proof that the mark has been in use for a long period and has become associated with a specific brand.
2. Risk of Descriptive or Generic Claims: Colors and sounds that are commonly used in a particular industry (e.g., green for eco-friendly products) may be rejected because they aren’t distinctive enough or because they are seen as a generic or functional element of the product.
3. Global Protection: Trademark laws vary by country, and non-traditional trademarks are not always easy to protect internationally. A color trademark that’s granted in one country might not be accepted in another.

Conclusion: The Future of Non-Traditional Trademarks

As brands continue to look for new ways to differentiate themselves in a competitive market, non-traditional trademarks such as colors and sounds are likely to become even more important. However, obtaining and maintaining these trademarks can be complex, requiring businesses to carefully document their use and demonstrate that their marks are not only distinctive but also non-functional and unique.

If you're considering whether your brand's color or sound could be eligible for trademark protection, it’s best to consult with a trademark attorney who can help guide you through the process and ensure you meet all the necessary legal requirements.

In short, while it may not be easy to trademark a color or sound, it’s certainly possible—and the benefits can be worth the effort if you’ve developed a truly distinctive mark that resonates with your audience.