Is everything a trademark?
When thinking of a trademark, you probably picture a brand name or logo.
However, distinctive signs come in many forms. Businesses and products can be identified by colors (e.g., Milka’s purple), jingles (PlayStation), short videos (Netflix), brand characters (McDonald's) and even shapes (Coca-Cola). These examples represent well-established marks with extensive use. For an average color or shape mark, however, consumers may struggle to perceive these marks as a source identifier. At least, that is the prevailing understanding in case law. To make such a color or shape eligible for registration, an additional distinctive element—such as a wordmark or logo—is often added to the overall design.
Recently, three applications for non-traditional trademarks were rejected—always something to learn from!
Case 1: Store layouts can be registered as trademarks if they significantly deviate from existing designs or include the store’s name or logo in the representation. In this case, the applicant attempted to depict the entire store layout using a fisheye lens. While creative, trademark representations must clearly define the claimed elements. Due to the distortion caused by the fisheye effect, the layout’s proportions and depth were not discernible. Consequently, the application was rejected.
Case 2: Sound marks are typically short, distinctive audio clips. Here, the applicant sought to register a 34-second musical piece—far longer than a standard jingle. Additionally, the melody was generic and lacked the necessary distinctiveness to function as a trademark. Upon listening, it becomes evident why the European trademark office denied registration.
Case 3: Danske Bank filed a video depicting blue vertical stripes oscillating within a darker blue background. The trademark office was unimpressed, concluding that the video did not create a lasting impression on consumers. Instead, it was more likely to be perceived as a screensaver or decorative element rather than an indicator of commercial origin.
So, is everything a trademark? No, but many elements can function as trademarks if strategically filed and sufficiently distinctive. The key is to be creative while ensuring compliance with trademark law requirements!
Author: Arnaud Bos
Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.