When considering registered trade mark protection, you may be aware of the options to apply to register a name or logo, but you may not realise there are a number of other possibilities available.

This is because a trade mark is understood to be any sign that is capable of being represented by the trade mark register – as long as it is clearly understood what is being protected.

No matter what format of the trade mark it must always be distinctive, i.e. it must be capable of distinguishing one trader’s goods or services from that of another.

What is a non-conventional trade mark?

Non-conventional trade marks include shapes, sounds, smells, colours, patterns and animations. Typical real life examples include T-Mobile “magenta” colour, the MGM “lion roar”, Burberry “check pattern” and the Netflix “opening sequence”, to name but a few.

What non-conventional trade marks could my business have?

Colour is perhaps the most common non-conventional trade mark and many businesses have successfully registered colour as a trade mark in order to enhance protection for their brand identity.

This is most suitable when a business uses a specific colour consistently throughout its branding messaging as well as for its products and/or packaging. The use of that colour needs to be so consistent that, over time, sight alone of that particular colour is enough for consumers to identify the brand – without needing to see any other words or slogans that the same brand also uses (and most likely has protected separately).

Typical examples of familiar brands that have protected colour aspects include Tiffany & Company’s registered trade mark for “duck egg blue” and the Louboutin registered trade mark for the “red” colour as applied to the soles of its shoes:

UK Trade Mark Registration No. 3064038 – Colour blue with RGB profile R 117 G 210 B 204″ – Tiffany and Company

UK Trade Mark Registration No. UK00908845539 – “Colour red (Pantone 18.1663TP) applied to the sole of a shoe as shown” – Clermon et Associes

Colour aside, perhaps your business has a musical “jingle” which it uses in its branding messaging and has become synonymous with your business.  If so, that could be registerable as a sound trade mark and therefore legally protected.

There are plenty of examples of “sound” trade mark registrations too.

For example, Intel have registered their 5-note chord progression as a trade mark in relation to computer hardware. This sound mark is the subject of UK trade mark registration no. 3658921.

Hit the play button below to hear it:

Animated marks are also becoming increasingly-popular.

In 2021, we registered this animated trade mark for Only Orca Limited.

Your business may also use packaging that has a distinctive shape and would be capable of trade mark registration.

Packaging marks can be registered as shapes so long as:

(a) the shape of the packaging does not result entirely from the nature of the product it contains (i.e. there is some creativity involved); and

(b) the overall shape does not provide a technical function (i.e. it is not shaped in a particular way because it has to be that way for the product to function); and

(c) the shape adds substantial value to the goods.

In essence, the shape must depart significantly from the norm or customs of the sector of products of that kind.

A good example of a shape mark protecting packaging is this bottle shape protected as UK trade mark registration no. 2000548 by The Coca-Cola Company:

You should therefore give some thought to your packaging style and consider whether this style is a key component of your brand and whether your customers could attribute that packaging style to your business. If so, and if the shape of the packaging met the tests above then trade mark protection should be a strong consideration because you would not want your competitors to copy you.

Smells are much harder to protect and there are far fewer examples of this, but there are some.

In the UK, Unicorn Products Limited managed to protect “The Strong Smell of Bitter Beer Applied to Flights for Darts“. This smell is registered in the UK under registration no. 2000234 and applies (not surprisingly) to flights for darts in Class 28.

In the US back in 2024, the Crayola company fought and won a long battle to register the smell of “crayon scent” in relation to crayons.

How to represent non-conventional trade marks?

A shape trade mark is simple to represent because all that needs to be shown is one or more images of the shape view.

Other trade marks can be more tricky to represent, but the advent of multimedia in recent times has made this much easier for sound marks.

The Intel 5-chord mark above is shown at the UK register both in graphical musical notation and with an embedded sound player. Older registrations had to rely solely on reproduction in musical notation form and so so these are far more difficult to identify without any music-reading knowledge.

Colour marks, as shown by the examples above, should be clearly identified by standards such as the Pantone colour scheme or by RGB hex colours. By stating these particular codes alongside a representation of the image, the trade mark right is clearly defined in so far as the precise colour.

A significant challenge can sometimes occur when it is not clear how the colour is applied to the goods or services in question.

By way of one well-known example in a battle of the two well-known confectionery companies, Nestlé challenged a colour application filed by Cadbury (for its colour purple) in so far as the description given as “The colour purple (Pantone 2685C), as shown on the form of application, applied to the packaging of the goods” was considered to be vague and imprecise.  The High Court agreed with Nestle.

For a smell, this needs to be described in a way that will evoke the sense of same smell when reading the description.  From the Crayola example above, the company described their crayons as consisting of a scent “reminiscent of a slightly earthy soap with pungent, leather-like clay undertones”.

For a sound trade mark, the practice now is to represent it through an audio file. This can easily be embedded within the trade mark register and accessed publicly.

With regard to “animated” trade mark applications, standard “gif” files are commonly used. As with sound files, these are easily embedded into the trade mark registers and played at will by any person accessing it.

The Distinctiveness Hurdle

As well as satisfactorily representing a non-conventional trade mark, you must also satisfy the requirement that this mark is distinctive.

A trade mark must identify the goods and services (subject of the application) as originating from a particular undertaking.

In other words, the trade mark must not describe the goods and services or be descriptive of the characteristics of the goods and services.

The trade mark must function as a “memorable badge of trade origin”, so applying to trade mark a colour, for example, will likely be difficult unless you can prove that the average consumer recognises this colour as being connected only to your business.

Non-conventional marks such as colour will almost always require evidence of acquired distinctiveness through use before they can be accepted for registration.

If we consider the power that a trade mark registrations provides to its owner (i.e. the ability to prevent a competitor from using the same or similar mark for the identical or similar goods or services) then you will realise that the registration of a specific colour per se gives very powerful protection. Therefore, strong evidence is necessary to show that the owner has accrued a strong right in using the colour over a significant length of time and that it warrants registered protection, to the exclusion of competing businesses. That can often be a very high bar. For many, it is an insurmountable bar.

Overall, the process for registering “non-conventional” marks is not always straightforward and can often be difficult when considering the nature of the mark and how distinctive it is.

Even so, by successfully registering such marks these can be very important and protective brand assets.

We advise never to neglect these facets of your branding and to protect them if you possibly can.

If you have any non-conventional marks and would like to consider protecting them, contact us today and we can advise you.