Registering Sounds, Smells & Movements as Trademarks in the US

In an attempt to protect IP rights, manufacturers seek to cover as much ground as they can. In particular, they try to make sure that even the most unlikely marketing instruments are taken care of. By registering international TMs, they strive to protect all their brands’ features, including those of them that relate to sensory perception.

This obsessive desire to resort to unconventional branding techniques causes them to face one important question: Can anything be protected by TM legislation?

Under the PTO criteria, non-traditional TMs can qualify for TM protection in the US if:

• their functionality isn’t in any way utilitarian;
• their promotion campaign has run long enough to make them be perceived as source identifiers by consumers.

Protecting TMs in the US: Smells & Sounds

By demonstrating that a smell gained consumer recognition due to its exceptional & consistent use, HASPO has succeeded in registering a smell in the US for one of its popular products called PLAY-DOH.

Applications for registering flavors as TMs in the US have also been submitted to the PTO (e.g. an orange scent for antidepressants; lemongrass, mint, lavender & thyme for soft drinks); however, none of them has succeeded in passing the required expertise.

US: Registering Sounds as TMs

Sutro Product Development Inc., an eyewear manufacturer, has recently succeeded in registering a sound as a TM in the US. Zippo, a US lighter manufacturer, has registered a click of its lighter as a TM. To prove its consumer recognition, Zippo has come up with multiple pieces of evidence demonstrating consumer acceptance on Facebook & Twitter. In its turn, Apple Inc. has been able to register sounds played during the bootup of its computational devices.

US: Registering a Series of Movements as TMs

TM registration in the US places additional requirements on drawings. According to them, they must accurately represent a movement, showing how it’s been used with regard to specific services or products. By complying with this criteria, Lamborghini has succeeded in TM-ing a movement whereby a car door is being opened. Achieving that required the automaker presented 4 still snapshots showing a door being opened at various intervals.

US: Registering Sounds, Smells & Movements as TMs

By using unusual movements or sensory perceptions, manufacturers can get a product to have a unique identity & be immediately recognized by customers. By highlighting a sensory cue in an ad, brand owners can get consumers to recognize a particular sound, smell or movement. It’s important, though, that words stressing the fact that a sensory function has utility value or improves product function be avoided.