What Else Can Be a Trademark? - Kennedy Law, P.C.

What Else Can Be a Trademark?

Author: Stephen A. Kennedy

Date: 04/24/2017

The majority of us easily recognize famous word and/or logo marks that we routinely encounter. For example, the average American would instantly associate the golden arches with McDonalds or know that “Melts in your mouth not in your hand” corresponds with M&Ms, owned by Mars, Inc. If you saw the famous Nike swoosh, you would probably know that it belongs to Nike.

However, trademarks can cover more than just words, slogans, and logos. Below is a list of things that you might not be aware can be registered as trademarks.

  • Sound: If a sound becomes associated with a particular brand and acts a source identifier, it may be eligible for registration. The following are examples of federally registered trademarks for sound: Darth Vader’s breathing, the NBC Chimes, Pillsbury Doughboy’s giggle, the Mocking Jay whistle from The Hunger Games, the Aflac Quack, Homer Simpson saying “d’oh!,” and the McDonald’s five note “I’m Lovin’ It” jingle. If you have a sound associated with your brand, don’t get too excited just yet. Note that the brands listed above are all very famous and well-established brands. It is actually very hard to federally register a sound as a trademark and most businesses elect to go the cheaper right of registering the sound with the United States Copyright Office for federal copyright protection.


  • Scent: To register a scent trademark, the applicant has to prove that the scent is nonfunctional and distinctive, meaning that a consumer would associate your brand with the particular scent. For example, the scent of pina colada was registered on the supplemental register as a trademark for ukuleles and a “minty” smell has been registered for the sale of pain-relief patches.


  • Color: Like scents, colors must be non-functional and be distinctive to be registrable. Tiffany Blue, Louboutin’s custom red-soles, UPS brown, and T-Mobile’s magenta color are all protected by federal trademark registration.

A common theme of ownership in sound, scent, and color trademarks is that they are, for the most part, owned by large, famous brands. This is because the brands have been able to achieve secondary meaning. Secondary meaning means that the color, scent, or sound has assumed a different meaning in the mind of the consumer, a meaning that the consumer associates with the actual brand. For example, if we were to print a sheet of paper in Louboutin’s specific red pantone color and show it to an individual on the street, he or she likely would not associate the red piece of paper with Louboutin and would not realize that particular red was owned by Louboutin for the sale of his shoes. If we were to show that same person an actual Louboutin shoe with the famous red sole, it is more likely than not that they would know it belonged to Louboutin. This is because the consumer associates the red sole with the Louboutin brand, thus providing secondary meaning.

If you have a potential mark for registration, please feel free to contact the trademark team at Kennedy Law, PC today.

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