Non-Traditional Trade Marks

We’ve previously written about Trade Marks and the benefits of registering a Trade Mark. Typically we see a lot of people registering a logo-based trade mark or even a word-only trade mark. Suprisingly, the Trade Marks Act allows for different types of trade marks to be registered – these are called “non-traditional trade marks”.

A non-traditional trade mark is a trade mark which is neither a logo nor is it a word. These can be:

  • A musical jingle
  • A specific colour
  • A shape
  • A scent
  • A type or series of movements

While the concept can seem odd, it does make sense. Think about it – we all know that some brands have familiar marketing habits that have, over time, developed into part of the brand itself. For example, BP, the petroleum company, is associated with the colour green. Coca-Cola is known for the shape of its contour bottle, and Toblerone for the shape of its chocolate. We’ve watched enough TV to know that the phrase “Aaah, McCain (ding!)” is followed by “You’ve done it again”.

All of the above examples are registered trade marks in Australia!

That being the case, because these marks are so different from the others, it also goes to say that it can be more difficult to be successful with such an application. Some time ago we wrote an article titled “Whiskas is Purple“, where we discussed the intentions of Mars Australia, the owner of the Whiskas brand of cat food, trying to trade mark the colour purple for their cat food. Recently Toyota tried to register a series of movement trade marks in Australia as well, with respect to its recognisable jumps – and sure enough, Jetstar Australia has considered that one of the jumps that Toyota is trying to trade mark is similar enough to it’s own mark!

Again, it is exciting to see that non-traditional trade marks are becoming more popular, but it’s difficult to gain protection of these marks. Businesses wanting protection over non-traditional trade marks must also promote and market the non-traditional trade mark extensively.