The Unusual World of Trademarks: Understanding Non-Conventional Trademarks through Case Studies

The cut-throat competition in the market forces enterprises to spend considerable time and effort on building a strong reputation and brand value. Trademarks undoubtedly expand the good will of enterprises and enable them to protect their unique products from competitors or infringers. Therefore, these enterprises engage in building more creative things to stand out, and non-conventional trademarks have steadily found their place in the market. In the traditional sense, trademark protection is accorded to logos, symbols, signs, names, captions, images, etc. The registration of non-conventional trademarks is difficult for two main reasons, namely: a lack of ability to be graphically represented and the difficulty of proving distinctiveness. But whatever the case is, the following are some of the bizarre trademarks approved across the world:

• Taylor Swift “This Sick Beat”- Taylor Swift, a pop artist, has trademarked some of her most famous phrases, such as “This Sick Beat” from the Shake It Off song (US Serial No. 86434794), “Party Like It’s 1989” and so on. Though many might find these phrases common or lack distinctiveness, they were popularized by Taylor Swift and are done to prevent any other person from taking profit off of her work. She is also one of the very first singers to get the lyrics of a song trademarked.

• The sound of Darth Vader’s breathing- Lucasfilm Entertainment Company ltd. LLC owns the trademark protection on the Darth Vader’s breathing (US Serial No. 77419252). The term “Star Wars” is trademarked, but one might find it surprising or strange that the breathing of someone is trademarked. But it is possible, and Darth Vader’s breathing is a classic example before us. Darth Vader is a character in Star Wars and has a mechanical sound that sounds like breathing. It is registered under class 25 for clothing, headgear, footwear and class 28 for games, playthings, and decoration materials.

• Olfactory trademark by Sumitomo Rubber Co- Sumitomo Rubber Co.’s “a floral fragrance/smell reminiscent of roses as applied to tyres” (Trademark Application No. GB 2001416) became the first ever olfactory trademark in the UK. It’s interesting, isn’t it, how a fragrance or aroma has got trademark protection? Another example of an olfactory trademark is “the strong smell of beer applied to flights of darts” by Unicorn Products.
• The phrase “Super Hero”- Itis a phrase commonly used by most people, but did you know that the term “super hero” is actually trademarked? (US Serial No. 72243225) Marvel and DC Comics are the joint owners of this trademark. But does this mean, no one can use these phrases? No, it only means that competitors or independent comic book creators cannot use this phrase with the intent to mislead customers.

• Onesie- Though an onesie is a garment for toddlers and generic in nature, it is trademarked by Gerber (US Registration Number 5413074). Wondering how a generic term like “onesie” gets trademark protection? It’s simple, as the good will of an enterprise becomes so strong, people start to use the words of that brand instead of its actual name. When any product is capable of having such an impact on people, such as a zipper, xerox or an escalator, which started as brand names, becomes diluted due to its usage as a generic word, in that case it becomes vital to protect such names from infringement by competitors.

• Tiffany blue- Yes, Tiffany blue is trademarked as a color by Tiffany (US Registration No. 4804204). In 2001, Tiffany Blue was standardized as a custom color created by Pantone exclusively for Tiffany. That means it is not available to the public. It can be rightly stated that Tiffany blue is the color of Tiffany and no one else.

• Ping Pong– Though ping pong and table tennis are the same sport, the distinction is in the trademark protection afforded to the term “ping pong,” (US Registration No. 0520270) which was popularised by Parker Brothers in the 1900s.

• Usain Bolt trademark- Known as the fastest man alive, Usain Bolt has trademarked his popular celebratory pose along with his name, the stylized initials UB, and a silhouette logo of Bolt’s signature (US Serial Nos. 97556602, 97552042, 87143172).

• OLD PARR surface texture- The leather texture wrapping around the middle surface of a wine bottle is registered as a texture mark in the US (Columbian Trademark Serial No. 15-045738).

• Motion Marks: One of the non-conventional trademarks is motion marks which is now gaining sufficient popularity in the world of trademarks. One example of a motion mark registered is the opening and closing of Lamborghini doors, which are protected as motion marks in the USA (US Serial No. 75883661).
• The word “Home” by Facebook: Isn’t it bizarre that the word “home” that we use, refer to, or hear at least a number of times a day is trademarked. But it is true that Facebook went ahead with registering the word “home” in classes 9, 35, and 38 of the US Patent and Trademark office.

• The Click sound of Zippo Lighters- The satisfying sound produced when the Zippo lighter is lighted has actually got a trademark registration (US Registration No. 5527388).

• Velvety touch of Khvanchkara wine bottles – The unique velvety touch of Khvanchkara wine bottles has been successfully registered as a touch mark (US Registration No. 3155702).

• Ties- Off-white after 4 years of battle, it successfully got the trademark registration for its unique zip tie, making it to the list of interesting trademarks across the world (US Serial No. 85498676).

The concept of non-conventional trademarks is relatively new, and it is gaining traction due to the increasing importance of branding and standing out in a competitive marketplace. These non-traditional trademarks, including sound, smell, hologram, motion, texture, and taste marks, provide businesses with a unique way to distinguish themselves from their competitors. The registration of non-conventional trademarks provides businesses with protection against infringement, ensuring that their intellectual property remains their own. As more and more businesses seek to protect their unique creations, the concept of trademark protection is evolving, and it is interesting to see how the legal system adapts to accommodate these changes.

In conclusion, the rise of non-conventional trademarks represents a significant shift in the way businesses protect their intellectual property. As this trend continues, businesses must remain vigilant in protecting their unique creations, and stay up to date with the changing landscape of trademark law. Ultimately, non-conventional trademarks represent a powerful tool for businesses looking to stand out in a crowded market and protect their intellectual property.

– Vedant Pujari, Partner

– Ritika Reddy, Senior Associate