Executive Summary:Non-traditional trademarks such as sounds, scents, and colors can be protected under U.S. law if they meet strict standards. To qualify, they must identify the source of a product and have acquired secondary meaning. These trademarks face high scrutiny during registration and enforcement, but can offer strong brand differentiation when properly supported and maintained.
Most people think of trademarks as names, logos, or slogans. But U.S. trademark law allows protection for non-traditional marks too—elements like sounds, smells, colors, motion, or product shapes, provided they serve a source-identifying function.
These types of marks are rare, but they’re not theoretical. The U.S. Patent and Trademark Office (USPTO) has issued trademark registrations for a wide range of non-traditional marks, from the NBC chimes to the scent of Play-Doh. Still, getting one registered and keeping it protected requires more than just a clever idea.
Here’s what businesses should understand before attempting to register non-traditional trademarks like sounds, smells, or colors.
What Is a Non-Traditional Trademark?
A trademark identifies the source of a good or service. Traditional marks include brand names, logos, taglines, or symbols. Non-traditional marks refer to sensory cues that are not inherently verbal or visual but still serve as brand identifiers.
Common types include:
- Sound marks (e.g., the MGM lion’s roar)
- Scent marks (e.g., a floral fragrance in yarn)
- Color marks (e.g., Tiffany blue)
- Motion marks (e.g., animated logos)
- Product shapes or packaging (also called trade dress)
Under the Lanham Act, any mark that distinguishes one party’s goods or services from another’s and indicates source can be eligible for trademark protection, including these non-traditional forms.
How Do You Prove Distinctiveness?
Non-traditional marks face a high bar because they are not inherently distinctive. That means they must have acquired secondary meaning where the public must already associate the sound, smell, or color exclusively with a particular source.
For example:
- Color: In Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995), the Supreme Court confirmed that a single color can function as a trademark if consumers recognize it as a brand identifier.
- Sound: The USPTO requires a detailed description and may require audio files. The sound must be unique, not just functional or commonly used in the industry.
- Scent: The scent must not be functional (i.e., it cannot enhance the product’s performance) and must be consistently and uniquely associated with the brand.
Evidence of distinctiveness may include:
- Length and exclusivity of use
- Advertising and marketing efforts
- Customer surveys
- Media recognition
- Sales volume tied to the use of the mark
Filing Requirements and USPTO Scrutiny
Applications for non-traditional marks require precise, detailed descriptions and often supporting evidence beyond what’s required for standard marks.
- Sound Marks: Must include a description and an audio file in .wav or .mp3 format.
- Scent Marks: Require a written description and often a sample submitted in a sealed container.
- Color Marks: Require a description of the color’s placement, a color swatch, and evidence of secondary meaning.
The USPTO Manual of Examining Procedure (TMEP) §§ 1202.13–1202.19 outlines the rules and standards for these types of marks. It’s not uncommon for examiners to issue Office Actions questioning distinctiveness or requiring additional proof.
What Are the Risks and Limitations?
Even if registered, enforcement can be challenging. These marks often require extensive litigation to prove confusion or infringement.
- Color marks may be challenged as functional if the color improves visibility or perception (e.g., safety orange).
- Scent marks can fade or be difficult to detect, especially across jurisdictions.
- Sound marks may be hard to enforce unless they’re widely known.
Additionally, if the mark loses its association with a single source, it can become generic or invalidated.
- When Does It Make Sense to File?
Non-traditional trademarks may be worthwhile when:
- The mark is widely recognized and clearly linked to your brand
- You’ve invested heavily in marketing and brand awareness
- The sensory cue is central to your product experience
- Your industry lacks such marks, giving you a clear brand edge
But if your brand is still building recognition, pursuing a non-traditional mark too early may not be worth the cost or effort.
Protecting More Than Just Words
Trademark protection isn’t limited to logos and taglines. If your brand includes a sound, scent, or color that consumers clearly associate with your product or service, it may be worth protecting. But these cases require a careful, fact-driven approach—and strong evidence that the public sees that sensory element as yours alone.
Want to know if your brand assets qualify for protection? Let’s talk.
McDermott IP Law
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