by Traverse Legal, reviewed by Enrico Schaefer - November 16, 2011 - What is a Trademark or Service Mark?
Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.
This is Brian Hall, a trademark attorney with Traverse Legal, PLC; a law firm representing trademark applicants throughout the United States. Today, I will be answering the question: What is a non-traditional trademark? And before I get into a non-traditional trademark, let’s remind everyone what a regular or traditional trademark is. A trademark is essentially any type of word, image, symbol or other indicator used to identify the source of goods or services. It is required to be distinctive and used in interstate commerce in order to be protected in the United States. While someone can apply a trademark registration with the USPTO or United States Patent and Trademark Office, it’s not absolutely critical in order to establish trademark rights. Instead, you can have trademark rights under what’s known as common law. And that’s usually governed by a particular state law.
Whether or not you’re applying for or looking to protect a traditional trademark or a non-traditional trademark, the laws are essentially the same. However, what a non-traditional trademark is is a mark that does not generally fall within the standard categories that I just recently discussed. Instead, it is one that is based upon color, smell, sound, shape or something other than a name, word, phrase, logo, symbol, design, image or some other combination of those elements.
So, for example, if you’re looking to protect a specific color like Tiffany’s looks to protect the unique blue color that it uses in its boxes, that would be a non-traditional or sometimes referred to as a non-conventional trademark. If you’re looking to protect a particular smell, whatever it might be, that, again, would be a non-traditional trademark. Sounds can also be protected as a trademark. Such as, a particular jingle at the end of a commercial or some other sound that is uniquely identifying a particular set of goods or services of your organization. Another example of a non-traditional trademark is Apple, who applied to protect the cube shape of the store that they sell their Apple products from.
So, it does not matter what kind of trademark it is, be it tradition or non-traditional, the requirements remain the same. However, the language of a non-traditional trademark, and that specific identification for these kinds of trademarks, is merely something used by those within the legal field, and those outside of the legal field, to identify those marks that aren’t tradition, so to speak. However, it’s important for you to recognize that t a qualified and experienced trademark attorney will be in the best position to advise you whether or not your non-traditional or non-conventional trademark is even entitled to protection. And if it is, that trademark attorney can advise you as to the likelihood of a successful trademark registration with the USPTO, or even internationally. Absent an opinion from a trademark attorney that has dealt with these kinds of issues, you may be pushing the envelope too far by labeling something as a non-traditional trademark if, in fact, it does not meet the requirements of distinctiveness, use in commerce and the other requirements set forth under either common law or the law set forth by federal legislation.
So, this has been Brian Hall answering your question: What is a non-traditional trademark?
You’ve been listening to Trademark Law Radio. Whether you are facing a trademark infringement, licensing, monitoring or trademark registration issue, we have a trademark attorney ready to answer your questions.
As a founding partner of Traverse Legal, PLC, he has more than thirty years of experience as an attorney for both established companies and emerging start-ups. His extensive experience includes navigating technology law matters and complex litigation throughout the United States.
This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Enrico Schaefer, who has more than 20 years of legal experience as a practicing Business, IP, and Technology Law litigation attorney.
