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Registration of Nontraditional Trademarks in the U.S. and EU
In recent years, innovative approaches toward brand creation and marketing have given rise to a new family of trademarks, referred to as nontraditional marks, which include, among others, color, motion and non-visual marks. Trademark laws in both the United States and Europe are being clarified to accommodate these new marks. Many such provisions are harmonious across both regions, but there are some procedural and substantive differences that should be considered before a company invests its time and resources into the creation of an international nontraditional brand. Further, registration of most nontraditional marks often requires a showing that the mark acquired distinctiveness through extensive use, which can be a heavy burden to meet under the law of both jurisdictions.
A nontraditional trademark can be visible or invisible. Visible marks include colors, lights, motion (moving images, such as the image on the computer screen when a browser is resolving a Web site), holograms, gestures, and positions (a mark that is specified by its position on a product (eg, the Mercedes three-point star). Non-visible marks include sounds, scents, tastes, and textures. The most common nontraditional trademarks are sound, color, and scent marks.
The Trend Toward Registration of Nontraditional Marks
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