Color is eligible for registration if the registrant may demonstrate that the color has achieved acquired distinctiveness. This means that consumers would instantly recognize the brand behind the color. Generally, acquired distinctiveness can be shown through affidavits attesting to long usage periods, consumer survey evidence, and extensive evidence of substantial marketing investments. Compounding the difficulty in obtaining a color trademark is the fact that the color cannot be functional. Fun fact: Pepto Bismol would be precluded from registering its pink color because their product is pink due to a functionality issue. The main ingredient in Pepto is bismuth subsalicylate, also known as pink bismuth.
Can you think of any famous brands that you would associate a color with?
You probably immediately recognized that famous Robin’s egg blue as a Tiffany box. Your association of that color with the Tiffany brand is the very definition of acquired distinctiveness and exactly what the brand sought to achieve. Other color marks include Owens-Corning’s pink product coloration for insulation, 3M’s Canary Post-It yellow, Mattel’s Barbie pink, Cadbury Chocolate’s royal purple, and UPS’ signature brown.
Sound may also be registered as a trademark with the USPTO when it has acquired distinctiveness. As with all non-traditional trademarks, sound mark registration is notoriously difficult. Generally, most non-traditional trademarks are owned by very famous, large brands that can afford the substantial investments required to encourage consumer association with the trademark.
Have you ever heard the three-toned chimes played at the beginning of NBC broadcasts? NBC owns a federal trademark registration in that sound. Pillsbury even owns a trademark in the Dough Boy’s famous giggle.
The USPTO website provides several examples of registered sound marks that you may listen to here. As you listen to examples from the list, you will find that you recognize the brand behind the sound on most of these. Once again, that is acquired distinctiveness at work.
Rarely, smell may be registered as a federal trademark. Acquired distinctiveness is very difficult to demonstrate in a scent, as the consumer must recognize your brand by scent alone. Making registration even more difficult is that the scent cannot be functional, meaning that the scent’s purpose must only serve to identify the brand. Current registrations for smells include a minty patch for pain relief, rose-scented promotional materials, and strawberry scented toothbrush.
If you are considering registration of a non-traditional trademark, it is important to conduct market research and to invest substantial resources into marketing and consumer education. Equally important is to apply for the trademark registration. Even if you are not yet eligible for registration on the Principal Register, you may be able to register your non-traditional trademark on the Supplemental Register.
If you have a question for our trademark lawyers, please contact our office at (214) 295-5070 or via email at [email protected]
Chelsie Spencer is an attorney with Ritter Spencer PLLC. Chelsie handles trademark registration, trademark licensing, trademark maintenance, trademark portfolio management, and trademark litigation, among other trademark services.