Beyond the Logo: Can Slogans, Sounds, and Smells Be Trademarked?

The world of trademarks typically conjures images of logos and brand names. But what about the other sensory elements that contribute to brand identity? Can slogans that jingle in your head, the signature chime of an ice cream truck, or even the evocative scent of a new car be protected under trademark law? The answer is yes, although the process differs slightly from the traditional methods.

Unconventional Trademarks: A Growing Trend

Traditionally, trademarks have focused on visual elements that readily identify the source of a product or service. However, with the increasing importance of brand experience across all senses, companies are seeking protection for non-traditional trademarks. Here are some examples:

  • Slogans: Think of Nike's "Just Do It" or McDonald's "I'm Lovin' It." These catchy phrases can be trademarked to prevent competitors from using similar slogans that might create consumer confusion.
  • Sounds: The MGM lion's roar or the distinctive jingle of an advertisement can be trademarked as audio trademarks. This protects the unique sounds associated with a brand.
  • Smells: The specific scent of a new car interior or a brand of perfume can be trademarked, although the process is more complex due to the difficulty of precisely describing a scent.

The Legal Hurdles: Distinctiveness is Key

While these unconventional forms of trademarks are recognized, obtaining protection isn't as straightforward as registering a logo. The key factor is distinctiveness.  Unlike a logo that is inherently unique, a slogan, sound, or smell may already exist or be easily replicated. Here's what trademark offices consider:

  • Inherent Distinctiveness: Is the element inherently unique and not merely descriptive? For example, "The Speedy Pizza Delivery Company" wouldn't be a distinctive slogan, while "Papa John's Better Ingredients. Better Pizza." might be.
  • Acquired Distinctiveness: Even if not inherently distinctive, evidence may show that the element has become associated with a specific brand through extensive use and consumer recognition. For instance, the red color associated with Coca-Cola wasn't inherently distinctive initially, but over time, it became strongly connected to the brand.

The Trademark Registration Process

The process for registering unconventional trademarks generally follows the same steps as traditional trademarks:

  1. Trademark Search: Conduct a thorough search to ensure the element isn't already trademarked by another company.
  2. Filing the Application: File an application with the trademark office, specifying the type of trademark (slogan, sound, smell) and how it is used.
  3. Examination and Approval: The trademark office will examine the application and may request additional information or evidence of distinctiveness.

Protecting Your Brand Identity

While obtaining trademark protection for unconventional elements requires more effort, it's a valuable strategy for brands seeking a holistic approach to brand identity. By securing trademarks for slogans, sounds, and even smells, companies can create a truly multi-sensory brand experience that is legally protected from imitation.