- Hi everyone.
I'm attorney Aiden Durham with 180 Law Co. in Colorado.
And you're watching "All Up In Yo' Business."
(soft music)
On this episode of "All Up In Yo' Business,"
we're going to talk about some fun, unique,
non-traditional types of trademarks.
Things that you likely encounter on a daily basis,
but may not even realize
that those things are actually trademarks.
But first, don't forget to like, subscribe,
and share and check the description
for links to additional information and resources.
You can find a link to download my free introduction
to trademarks guide, as well as information
on my all inclusive trademark registration package,
and my online DIY trademark course.
Okay, so most of us know about some
of the common types of trademarks.
Business names and logos are probably the most popular types
of trademarks that we think about,
and that businesses will typically use as trademarks.
But a trademark can be really anything.
A trademark is any word, name, symbol, or device,
or any combination of those things
that identifies and distinguishes goods and services,
and indicates the source of those goods and services.
So again, any device, word, symbol, thing that's used
to indicate the source of a product,
or to distinguish it from a product of somebody else.
I've said a lot before that a trademark isn't a trademark
until it becomes a trademark.
Same goes for a trademark isn't a trademark
unless it's a trademark.
So anything that's a trademark can be a trademark.
Get it?
So of course we know that business names, slogans,
catchphrases, logos, these things
can function as trademarks.
But there are a lot of other things outside
of just words and logos that can be considered trademarks.
Again, anything that's used to identify
and distinguish the goods or services.
Sounds, for example, can function as a trademark.
And there are actually a lot
of pretty famous sound trademarks out there.
You know those chimes that you hear
when you're watching your favorite show on NBC.
(NBC chime)
Yeah, that sound is a trademark of NBC.
When we hear it, we know we're watching
a wonderful NBC show.
How about this familiar sound?
(MGM sound)
That roaring lion sound is a trademark of MGM studios.
This one too.
(ESPN chime)
That's a trademark of ESPN.
I'm not sure how relevant this one really is anymore,
but any of you remember TiVo?
It was like the prehistoric DVR.
Any of you remember that kind of annoying sound
that it would make any time you would try
to like click things or do anything?
(TiVO chime)
Yeah, well you guessed it, that's a trademark too.
Apparently TiVo is still around.
Maybe the more timely and appropriate sound
that you guys would recognize this one.
(Netflix chime)
Good old Netflix.
We've all heard it a lot.
Probably especially more in this past year.
Even this one.
(The Simpsons sound)
That's a trademark of 20th century Fox.
But it's not just sounds,
smells can function as a trademark as well.
I would argue that my dog Rocky has a trademark smell.
It's not a good one, but when I smell it,
I know that that smell came from Rocky.
The smell of Play-Doh for example,
is a registered trademark of Hasbro.
Technically, the trademark is a scent
of a sweet slightly musky vanilla fragrance,
with slight overtones of cherry combined
with the smell of assaulted wheat based dough.
Did any of you actually recognize
that's what that smell was?
I certainly didn't.
It always just kind of smells like Play-Doh.
But, I think that's the point.
When we smell that smell, we think of Play-Doh.
Just like when I smell that other smell I think of Rocky.
Verizon has a registered trademark of a flowery musk scent.
The idea is that if we walk into a cell phone store
and smell that recognizable flowery musky smell,
we know that we've walked into a Verizon store.
Don't ask me why all these brands use musky smells,
I guess that's just a trend or something.
And this was actually kind of a relatively new thing
to enter the trademark world.
The first smell trademark in the United States
was a plumeria blossom scented embroidery thread
that was issued in 1990.
And especially compared to the name and logo
and other kinds of conventional styles of trademarks,
these trademarks are pretty rare.
The main reason behind that is because you have to show
that the scent or the smell serves
no important function other than to help identify
and distinguish the brand.
So that means the smell can't be part
of the function or the purpose of the product.
Like perfumes or air fresheners.
Perfume scents aren't considered trademarks
because that's what the purpose of the product is.
It's a scent, and that's why it exists.
The scent serves no other purpose,
and it doesn't really help us identify
or distinguish where this thing came from.
Colors and shapes can also be trademarks.
Again, kind of like with smells,
shapes and colors don't always count as trademarks.
Particularly if they serve a function
or if they're essential to the use or purpose of the product
or the service.
That classic canary yellow color of a post-it note
is a registered trademark.
As is that brown color of those UPS trucks.
Same goes for those well-recognized red bottoms
of Louis Vuitton shoes.
The point here isn't that these companies own these colors,
and nobody else can use them in any other way.
Clearly we've all seen and probably owned plenty
of red shoes.
But if we own a black shoe with a red bottom,
we know we're extra fancy.
And speaking of fancy,
those light blue jewelry boxes
are also a trademark of Tiffany.
Let's compare that with, for example,
that beautiful pink color of Pepto-Bismol.
When they tried to register the trademark for that color,
it was denied, because it was deemed functional.
That pink color was intended to provide a pleasing color
for someone who has an upset stomach.
And because of that function,
they didn't really consider it a trademark.
The color serves an actual purpose in the product.
It's supposed to help make us feel better.
It's not just to let us know that we're taking Pepto-Bismol.
Same goes with shapes of products.
A shape of a product can be a trademark,
as long as it's not functional.
Coca-Cola has a trademark for that distinctive shape
of their bottles.
And that lovely distinctive shape
of a delicious Toblerone candy bar is also a trademark.
Even textures can be considered trademarks.
This company has a registered trademark
for their flocked texture on a label to be used
on the glass bottle.
The point with all of this is,
trademarks are not exclusive to just words and images.
Potentially anything can be a trademark,
as long as it's used as a trademark.
I always recommend working
with an experienced trademark attorney
if you're trying to get a registered trademark.
But that is a million times more important
if you're trying to register one
of these nontraditional types of trademarks.
Just because you use a certain color on your product,
or your product packaging, or a certain sound
and connection with your services,
or something like that,
doesn't necessarily mean it's a trademark,
or that it's eligible for registration
with the United States patent and trademark office.
As I was researching getting ready for this video,
a lot more of what I found was why this trademark
didn't get registered,
or why this one didn't get registered.
And these were from big companies.
I'm talking big corporations with millions
and millions of dollars to throw
at their intellectual property portfolios.
They spent a lot of money and time trying to fight
for these trademark registrations,
which ultimately didn't become registered.
So if you're trying to register one
of these non-traditional trademarks, please, please, please,
please work with a trademark attorney,
because they're even more complex
than just a traditional normal word or logo trademark.
That's all for this episode folks.
Drop a comment below, let me know what you think.
And again, don't forget to check the description
for links to additional information and resources.
Thank you all so much for watching.
I'm Aiden Durham, and I'll see you next time.
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