Non-traditional Trademarks–The Weird and The Weirder
While there are firm rules and restrictions regarding trademarks, an abundance of not-so-average trademarks begs the question–what constitutes a trademark? As previously mentioned, a trademark can be a phrase, slogan, logo, word, or combination mark. However, in some cases, certain sounds and gestures can be trademarked. That’s right; there is such a thing as non-traditional “weird” marks–including things such as scents, sounds, tastes, textures, colors, and beyond.
Much like traditional trademarks, non-traditional trademarks must identify the source of the goods or services, as well as be inherently distinctive or have acquired said distinctiveness over time. What constitutes whether a nontraditional mark gets the thumbs up all depends on the jurisdiction of course, but these are a few elements that are legally grounded–so long as they are used in commerce in some form.
Let’s catch a glimpse of a few famous non-traditional trademarks that have made their claim to fame, shall we?
Phrases
Ever heard the phrase “I’m not, not down,” “Send it!” or for the Gen Z folks–” It’s giving”?
You might even have a signature catch phrase that you always say, and perhaps it has caught on amongst your peers. If brands and celebrities can leverage iconic catchphrases, you can too. It should be clear that in order to register a phrase as a trademark, you must be already using the phrase publicly.
Here are a few examples of trademarked phrases that have stuck with society, some of which you’ve likely heard or even used in conversation.
“That’s Hot”
Taking the cake for one of the more absurd, comical, empowering, and recognizable trademarks–if you’re a millennial–is Paris Hiltons classic phrase “That’s Hot!” This phrase was famously heard countless times throughout her ridiculously captivating reality TV series The Simple Life. Paris registered the phrase as a trademark in 2007 with the USPTO after it caught on with the masses and her fans, and soon began to circulate on merchandise such as t-shirts, which the Hilton heiress proudly wears on occasion. Paris Hilton now has over 20 registered trademarks for clothing lines, cosmetics, and other merchandise that carry her name. Talk about an icon! That’s hot, no doubt.
“It’s on Like Donkey Kong”
Donkey Kong–a beloved 90’s Nintendo game that took the gaming industry by a storm–introduced a now wildly popular saying into the world, which is none other than “It’s on Like Donkey Kong.” This phrase is essentially another form of saying “Game On” or insinuating that it’s time to throw down–but with a bit more personality. Nintendo chose to trademark this phrase after it was created in 2010, fundamentally built to create hype around their new game–Donkey Kong Country Returns. Of course, the famous expression has many interpretations, but no matter when or how it’s used, it adds a sense of nostalgia–evoking pleasant memories for those who interacted with the iconic video game.
“Maybe She’s Born With it, maybe it’s Maybelline.”
This beauty product tagline implies to consumers that by choosing Maybelline as their product of choice, their enhanced beauty could fool people because their products appear to look so natural. Maybelline commercials used this tagline–trademarked in 1994–for their goods and services such as cosmetics, namely mascara, eyeshadow, concealer, foundation, blush, and…you get the gist. The phrase has become so widespread that people use it to indicate a variety of things, such as someone’s superficiality.
The list goes on, but as you can see, if you have a catchy tagline, phrase, etc., or if one manifests from a product you’ve created, don’t sleep on trademarking it.
Gestures
Similarly to trademarking a scent, it isn’t easy to trademark a gesture in its own right. However, there are certain circumstances that are just so iconic–such as “celebration moves” that have earned their stripes.
The “Dab”
One of the most noteworthy movements in the last century is the “Dab,” indicated to represent a victory goal or point, or general win. We now see elementary school kids and athletes alike using it playfully and frequently, in all types of contexts. Paul Pogb–a Manchester Unified football star–trademarked the popular celebration move in several classes of goods, such as watches, clothes, and more.
The celebrity midfielder registered his name and dab celebration move in tandem, and is considered among the wealthiest soccer players in the world. This distinctive pose involves dropping your head crooked resting on a bent elbow that is slanted and and upwardly angled while raising the opposite arm to the sky. Some believe the gesture was made popular by famous rap group Migos in the Atlanta hip-hop scene, though the French World Cup winner jumped on trademarking early on, which is perhaps why he is given credit for its origin.
Note that there are several other victory gestures that have gained traction as a result of an athlete celebrating a win or to represent their personal brand image, such as the Gareth Bell Heart-Shaped Hand Gesture.
Colors
Color psychology demonstrates that particular colors can affect our perception and behavior. This is why thinking methodically about the colors you associate with your branding, packaging, goods, services, and overall business is crucial. Colors can influence brand growth by way of distinction, and by evoking certain feelings or emotions in consumers. Using color to help consumers connect to your brand is a very sound reason as to why you should consider trademarking a color, which users can then use to distinguish your goods and services from competitors.
Tiffany’s “Tiffany Blue”
The beautiful and elegant Tiffany Blue–created by Pantone–became a standardized custom color that even non-jewelry lovers can identify instantaneously. Tiffany’s proprietary hue is consistent, which is exactly why they made it off-limits for other folks to use publicly. Tiffany registered this captivating color as a trademark back in 1998, determining the color’s exclusively for the brand. This is an excellent example of how creating a distinguishable color can do wonders for your brand–perhaps even becoming synonymous with it over time.
Post-it’s “Canary Yellow”
Another notable color instantly associated with a product is Post-it’s “Canary Yellow.” Post-it began as a pale yellow, and soon after transpired into the vibrant yellow mini sticky note it is today. Now, Post-it’s come in many colors and sizes, though its Canary Yellow color was deemed so recognizable that the creators had to protect it with a trademark. Believe it or not, Microsoft was allegedly sued for infringement when it created a digitized model of a sticky note product in their in-house widgets, which boasted the identical Canary Yellow color.
Reese’s Orange
Reese’s may not own the recognizable pumpkin-orange color used on their product packaging for their chocolate, though they do have it listed as a registered trademark. The trademark prohibits competitors in the confectionary sector from using this exact shade of orange. Reese’s orange serves as a vibrant identification of their delicious yet not-so-nutritious candy. Their color represents excitement, fun, and creativity, and it is easy to spot among a sea of candy bars and sweet treats.
Sounds
Throughout our lives, we begin to associate certain sounds with objects, places, people, locations, or feelings. That blaring whistle a tea kettle makes when it brings water to a boiling point. The calming sound of rain pitter-pattering on a rooftop. The awakening sound of a doorbell as it informs you someone has come to greet you. It’s no secret that sounds can tap into our emotions and unlock memorable experiences, which is why trademarking a sound–so long as it is unique, arbitrary, and distinct–is highly beneficial to your business.
If you want your product to stand out from others in your marketplace, you should consider protecting it. A sound mark can be used to identify a person’s or organization’s goods and services, and it could be anything from a melody to something created out of a happy accident. We’ve listed a few iconic trademarked sounds below to show you just how infinite the possibilities are when it comes to trademarking a sound.
Yahoo Yodel
Earlier explorers of the interwebs indeed have Yahoo! ‘s classic yodel etched into their memory for a lifetime. Yahoo! In the late ’90s, buzzed through computer speakers across the globe and soon made its way into doorbells, plush toys, and beyond. Even if folks are nowhere near an internet browser, that catchy Yahoo Yodel has a way of popping into one’s head. What most people don’t know, however, is that there was a dispute in 2021in which Mr. Wylie Gustafson–a national yodeler–sued for copyright infringement and won a settlement with a sizeable amount of dollar signs. Gustafson recorded that classic yodel in 1986 for a one-time payment, but later found the deal to be unfair after the sound aired at the Superbowl.
In Gustafson’s favor, the sound wasn’t yet trademarked, and thankfully he found a way in 2002 to register a copyright on his distinct yodel, so he could earn what he deserved off his distinct yodel. The agreement dictates that Yahoo has exclusive rights and unlimited use and copyright to the distinct yodel sound–for a hefty settlement fee–though, in the present day, it is no longer used. Regardless, Yahoo’s memorable marketing will forever be pressed into late ’80s and ’90s babies’ memories.
MGM Lion Roar
The Metro-Goldwyn-Mayer studio’s “Lion Roar” trademark paved the way for sound trademarks far and wide. The MGM trademark application to trademark their signature lion’s roar was initially rejected in 1992, but later on was accepted once the appropriate requirements were met to secure the sound legally.
The Lion Roar appears in timeless films such as Gone With the Wind and The Wizard of Oz, providing viewers with a sense of familiarity and comfort before they embark on a journey through their favorite films–brought to them by MGM studios.
If you have a distinctive sound that you believe will become imperative to your brand, or one that has acquired distinctiveness through consumers and repeated use, don’t waste another minute. There are prerequisites you’ll need to move forth with your application, such as a drawing that graphically represents the sound, a description of the sound, and an electronic recording of the sound–in specific formats–but that should be easy if you truly have something unique.
If you think you have a non-traditional trademark in your midst, we highly encourage you to consult with a trademarking expert to understand more about how you can leverage your distinctive non-traditional trademarks.
CTA – Protect My Nontraditional Mark