| Non-conventional Trademark |
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Information AboutNon-conventional Trademark |
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The term is broadly inclusive as it encompasses marks which do not fall into the conventional Set of marks (eg. those consisting of letters, numerals, words, logos, pictures, symbols, or combinations of one or more of these elements), and therefore includes marks based on appearance, shape, sound, smell, taste and texture. Non-conventional trademarks may therefore be ''visible'' Signs (eg. colours, shapes, moving images, holograms, positions), or ''non-visible'' signs (eg. sounds, scents, tastes, textures). TRENDS AND ISSUES Certain types of non-conventional trademarks have become more widely accepted in recent times as a result of legislative changes which expand the definition of 'trademark'. Such developments are the result of international treaties dealing with Intellectual Property , such as the Agreement On Trade-Related Aspects Of Intellectual Property Rights , which sets down a standardised, inclusive legal definition. Single Colour Trademark s, ''' Motion Trademark s''', ''' Hologram Trademark s''', '''shape trademarks''' (also known as ''three dimensional trademarks'' or ''3D trademarks''), and ''' Sound Trademark s''' (also known as ''aural trademarks''), are examples of such marks. It is possible, in some cases, for color alone to function as a trademark. Originally, color was considered not a valid feature to register a trademark '' Leshen & Sons Rope Co. V. Broderick & Bascom Rope Co. '', 201 U.S. 166 (1906). Later, with the passage of the Lanham Act the United States Supreme Court in the case of '' Qualitex Co. V. Jacobson Products Co. '', 514 U.S. 159, 165, 115 S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995) would rule that under the Lanham Act, subject to the usual conditions, a color is registrable as a trademark. The right to exclusive use of a specific color as a trademark on packaging has generally been mixed in U.S. court cases. Specific cases denying color protection include royal blue for ice cream packages ('' AmBrit Inc. V. Kraft, Inc. '', 812 F.2d 1531 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987)); a series of stripes or multiple colors on candy packages ('' Life Savers V. Curtiss Candy Co. '', 82 F.2d 4 (7th Cir. 1950)); green for farm implements ('' Deere & Co. V. Farmhand Inc. '' (560 F. Supp. 85 (S.D. Iowa 1982) aff'd, 721 F.2d 253 (8th Cir. 1983)); black for motors ( Brunswick Corp. V. British Seagull, Ltd. , 35 F.3d 1527 (Fed. Cir.), cert. denied, 115 S. Ct. 1426 (1994)); and the use of red for one half of a soup can ('' Campbell Soup Co. V. Armour & Co. '', 175 F. 2d 795 (Court of App. 3d Cir., 1949)). A successful case granting color protection involved the use of the color red for cans of tile mastic '' Dap Products, Inc. V. Color Tile Mfg., Inc. '' 821 F. Supp. 488 (S.D. Ohio 1993), and of an "ugly shade of greenish-gold" for dry cleaning pads ('' Qualitex V. Jacobson Products, Co. , 514 U.S. 159, 165, 115 S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995)). Although scent trademarks (also known as ''smell trademarks''), are sometimes specifically mentioned in legislative definitions of "trademark", it is often difficult to register such marks if consistent, non-arbitrary and meaningful '''graphic representations''' of the marks cannot be produced. This tends to be an issue with all types of non-conventional trademarks, especially in Europe. United States practise is generally more liberal, where a trademark for plumeria scent for sewing thread was registered in 1990. In Europe, a written description, with or without a deposited sample, is not sufficient to allow the mark to be registered, whereas such formalities are acceptable in the United States. However, even in the United States "functional" scents that are inherent in the product itself, such as smell for perfume, are not accepted for registration. Presenting further difficulties are entirely new types of marks which, despite growing commercial adoption in the Marketplace , are typically very difficult to register, often because they are not formally recognised as a "trademark". Examples of such marks are motion trademarks (also known as ''animated marks'', ''moving marks'', ''moving image marks'' or ''movement marks''). Many Web Browser s feature a moving image mark in the top right hand corner of the browser screen which is visible when the browser is in the process of resolving a Website . DECISIONS ON NON-CONVENTIONAL TRADEMARKS Owens-Corning Owens-Corning was issued a trademark for the color pink used to color its Fiberglass batting insulation product. The decision was based upon the fact that the company had been emphasizing the pink color of its insulation for decades, had licensed use of the Pink Panther cartoon character in its ads, the color was a non-functional aspect of the product (fiberglass is normally tan or yellow, unlike, say, Antifreeze which normally is a shade of green), and Owens Corning had spent over US$50 million advertising its insulation product. '' In Re Owens-Corning Fiberglas Corp. ,'', 774 F.2d 1116 (Fed. Cir. 1985) ''Sieckmann'' In Dr. Ralf Sieckmann Vs Deutsches Patent- Und Markenamt (case C-273/00), a judgement of the European Court Of Justice issued on December 12 , 2002 , the ECJ held in relation to trademarks in the European Community that:
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