What can be Trademarked
Colors, initials, sound, images can all be trademarked under certain circumstances. However, a Book title, hairstyle or joke by itself will not make the cut. What constitutes a trademark is a complex subject. Read this article to get a firm understanding of trademarks and under what circumstances you can trademark the aforementioned terms.
With the fast evolution of technology and the world around us, there are a number of ideas that individuals/entities would like to protect for which they would have to obtain a trademark. However, there may exist some ambiguity with regard to what exactly can be trademarked? For example, can a color, hairstyle, joke or even a uniform be trademarked?
Color, Hairstyle and Joke
In order to trademark a color, the color combination must play an integral part to the overall identity of the product/service being sold. A hairstyle on the other hand cannot be trademarked; however the name/logo that is being used to represent/advertise the hairstyle service can be trademarked.
Additionally, an image of a hairstyle being used in the same logo would also be protected under the mark. Similarly, for a joke as well, it must be associated with the product, which is crucial for distinguishing the product from others because of the use of the joke.
A uniform cannot be trademarked. This is because a uniform is distinct owing to its structure i.e. its shape and design which are not elements that can be trademarked.
A person’s initials can be trademarked if they are being used to distinguish the goods. Initials were the original and earliest forms of trade marking. This is because manufacturers of products in the early days had to distinguish their products in the market and the easiest way to do this was to put their own initials on the product. Thus, this is an extremely common and accepted method even today.
A sound can be trademarked. Lately, it has become an integral part of product advertising on television and radio. The standard is that the sound must be unique and must be recognizable by consumers/audience in reference to the product. For example, MGM’s famous lion roar.
With an image, one has to show that it is necessary in setting the brand aside from others. For example- Nike’s image used in its logo. An average consumer can identify the logo and relate it to Nike. Another example would be Coca-Cola’s logo.
A tattoo would fall under the category of image and would be protected. It must not be generic i.e. relating to a class of things and must be distinct in its form. For example, the word “accounting” cannot be trademarked for the purpose of accounting services.
A book title cannot be trademarked for a single/individual book however a title for a series of books can be trademarked. Thus a number of books falling under the title would establish creative work and would be guaranteed protection.
Even though there is a broad range of non- conventional trademarks which do not fall into standard categories, such as colours, smell, or sound (like jingles), a 3-D mark can also be registered. A trademark can never be offensive and should not hurt the religious sentiments of any community.
Different goods and services have been classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods, and 35 to 45 services).
The idea behind this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark and to unify classification systems around the world.
Below are some examples of each type:
1. Word (PEPSI, COCO COLA,)
A word mark is a distinct text of the name of the company/product name for the purpose of branding. Thus it is specifically text based unlike a logo that represents a pictorial image.
2. Name (RAYMOND WEIL, CHRISTIAN LOUBOUTIN)
A name that identifies a business/profession. This is common among fashion designers. For example, Ralph Lauren trademarked his name in 1972. Similarly Donna Karan as well trademarked her name after a dispute over it.
3. Surname (TATA, BATA,)
When consumers/public recognizes the surname in reference to the company/product and not just merely as a surname in itself; it must be established that it has acquired a sense of distinctiveness.
4. Letters (BMW, IBM,)
Acronyms can be used if it is used specifically to identify the service. It must not be generic in nature. For example, BMW for cars and AT&T for telephone services etc.
5. Numeral (555, 501)
The number must be used as a brand for the product/service. For e.g. the number 5 must be used specifically for a line/class of products/services and must be identified by it in order to obtain the TM.
6. Symbol (MERCEDES BENZ THREE POINTED STAR, ADDIDAS PYRAMID)
These symbols have a history behind them that represent the work of the company and give brand value and identity to it. The average consumer identifies the logos with the company without the name written under it because over the years with their usage, they have acquired distinctiveness and have become famous.
7. Device (AMUL GIRL, PILLSBURY BOY)
A device is a printed/painted figure/design/character. They do not consist of any letters/words/numerals etc. For e.g. the Pillsbury Doughboy is a famous TM. Thus is it a special design that represents the product.
8. Colour scheme (PIZZA HUT, DOMINOS)
The color combinations become the brand itself and become known by it for that particular product. The public tends to associate the scheme with the specific product.
9. Packaging (CADBURY’S)
All the contents featured on top of the packaging i.e. the names, slogans etc. can be trademarked. This can stop a competitor from using a deceivingly similar packaging for their product so as to not mislead the public and ride on the brand value of the original packaging.
10. Shape of goods (COCA COLA BOTTLE , FROOTI)
The shape should not be from the goods but has to instead be in relation to the goods. It must not contribute to the enhancement of the function of the product nor must it add to the value of the good in a substantial manner and must be unique.
11. Signature (LOUIS PHILIPPE)
The signature must represent something. It cannot be a mere signing/writing of a name in a styled manner. It must distinguish goods.
Thus, it is important to remember that when registering your trademark; it is always in connection with the product/service and hence there is no monopoly over it.
For example, McDonald’s logo of “I’m loving it” is not absolutely owned by them, which means that others are free to use it as well.
However, they do own the phrase in connection with the service that their restaurant partakes in. The trademark does not protect the product/service by itself but merely protects that which identifies the product in the market and distinguishes it from other products/services.
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