Trivia time:  what weird things can you trademark?

Brand identity is more than product packaging, logos, or slogans.  When you see the brown delivery truck rumble up the driveway, do you immediately know it is UPS and not FedEx?  Does the smell of Play-Doh conjure childhood memories?  Do you know what channel is on when you hear the NBC chimes?

Color, smell, and sound are among the many unusual qualities that can be registered as a trademark. You are not limited to your company name and slogan.  Let’s look at 9 surprising and weird things you can trademark.

Names

Everyone knows that company names like Nike and Disney are trademarks, but did you know that individual people can trademark their own name?

The rapper 50 Cent and the Food Network celebrity Guy Fieri both did. Beyoncé and JAY-Z trademarked the name of their first child Blue Ivy Carter as well.

Even if your name is also Guy Fieri, you cannot sell coffee, salsa, chef knives, or hooded sweatshirts, using your own.  No Guy Fieri Coffee Company or Guy Fieri Clothing Company.  He registered it first and you must choose another name for your company.

Before you rush to trademark your name, keep in mind that it must be widely recognized in commerce.   You have to acquire brand distinctiveness and that takes years and money.

Phrases

Paris Hilton famously trademarked her catchphrase “that’s hot.” Taylor Swift trademarked her lyric “this sick beat” from the hit single “Shake It Off.” Nintendo even trademarked the phrase “it’s on like Donkey Kong” relating to their famous video game character.

Your phrase must be associated with a particular product or service. While many people try to register a trademark for popular catch-phrases, they usually fail.

For example, it is difficult to trademark a phrase on a t-shirt because most phrases are “ornamental” and not associated with a specific brand.  On the other hand, if people associate your phrase with your company (such as Nike’s “Just Do It” on athletic clothes), registering your trademark is possible.

Colors.

Tiffany blue, UPS brown, 3M (Post-It) yellow, and Target red are all distinctive shades that are trademarked and cannot be used by other companies for the same category of goods.

Don’t get too excited yet about trademarking a color.  It is challenging and you need substantial evidence that your color is associated with your brand.

To qualify, the color must “identify and distinguish” your brand from the competition.  Additionally, the color cannot be “functional.”  For example, the bright orange of a traffic cone functions as a warning and not as a brand.

Sounds

What other weird things can you trademark?   How about sound?

Every time that you hear the Law and Order chime, know that NBC trademarked it all for themselves. They’re not the only ones – Darth Vader’s distinctive breathing, the Aflac duck’s quack, and Homer Simpson’s classic “D’oh!” are all sounds that are trademarked.

Podcasts

You can even trademark a podcast! Many podcasts build significant brands with their audience.  Podcasters use their brands to promote other services such as books, speaking engagements, and licensing their content.

No matter what form your business is taking, odds are that it can (and should) be trademarked.

Shapes

A Hershey’s Kiss, a Pringles chip, and a Coca-Cola bottle are all examples of actual shapes that have been successfully trademarked.

It is extremely difficult to trademark a shape, but it can be done! Your shape must be so distinctive that it identifies your brand.  It must also be non-functional.

For example, Pocky recently lost a challenge to its distinctive cookies, in large part because the Court found the shape to be functional (designed to be eaten without chocolate melting on your fingers) and not purely ornamental.

In contrast, Toblerone’s trademarked “zig-zag prism” shape is ornamental and not functional (in addition to being highly distinctive among chocolate products).

Buildings

You may be surprised, but many famous buildings are registered trademarks.  This list includes the Eiffel Tower at night, Notre Dame de Paris, and the Sydney Opera House.

According to the small print on your ticket, you cannot take a photo of the Eiffel Tower at night and then sell the photo or products featuring the photo.  You must obtain permission and pay a royalty. This is because the illumination (light design) of the tower is a registered trademark.

You might be wondering how this is a trademark and not a copyright.

Generally, copyright law protects creative works, such as photographs.  However, with the Eiffel Tower (and others iconic photographic images), the entire design of the building is so iconic that the public associates

Smells!

Even things that cannot be seen or heard can be trademarked. The Play-Doh smell, which has haunted parents for decades, is a trademark, as is the so-called “flowery musk” of a Verizon store. To each their own.

There’s a catch, though.   The smell must “serve no important practical function other than to help identify and distinguish a brand”.  This means the smells emanating from candles, perfume, and food do not qualify for trademarks.

Events

Boston Marathon. Macy’s Thanksgiving Day Parade.  Relay for Life.  These events are registered trademarks.

You can trademark an event if it is distinctive and has a national audience.  In addition, you can also trademark the logo and slogan associated with your event.

 

Weird things you can trademark

As you can see, trademarks aren’t just for company names – they can be sounds, colors, and smells.  Think outside the box about what really makes you unique. Consider registering a trademark for those unique, brand-differentiating traits.

For help with trademarks and your business, contact Concerto Law today. We offer legal solutions that break through the noise.