The human senses have the powerful ability to trigger memories and help retain information. The tune of “Twinkle, Twinkle, Little Star” helps millions of kids learn the alphabet every year, and even adults retain that tune when they have to recite the ABCs. The smell of freshly baked cookies can transport us back to memories of youth helping bake in grandma’s kitchen.
Is it possible to harness these powerful sensory triggers to promote a company’s brand? The answer is yes!
The Lanham Act defines “trademark” in broad terms. Under Lanham Act § 45, 15 U.S.C. § 1127, a trademark is “any word, name, symbol, or device, or any combination thereof” used to “identify and distinguish [a person’s] goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.”
Under this broad definition, a trademark can be anything that can be detected by sight, sound, smell, taste, or touch, as long as it is used to identify a source of goods or services. The U.S. Supreme Court has confirmed this broad interpretation, stating “[i]t is the source-distinguishing ability of a mark—not its ontological status as color, shape, fragrance, word, or sign—that permits it to serve these basic purposes.” Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 164 (1995).
Although word and design marks are the most traditional and recognizable types of trademarks, nontraditional trademarks that target the other senses do exist, and can provide valuable brand identification.
Sound: A number of well-known sounds have been registered in the USPTO as trademarks:
- The sound of Darth Vader breathing: “The mark consists of the sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator.” See No. 3,618,322.
- The Jolly Green Giant’s laugh: “The mark is the sound of a deep, male, human-like voice saying ‘Ho-Ho-Ho’ in even intervals with each ‘Ho’ dropping in pitch.” See No. 2,519,203.
- The Looney Tunes Theme Song: “The mark consists of the Looney Tunes Theme Song which consists of eighteen (18) musical notes comprising the notes, E4, D4, C4, D4, E4, EFlat4, E4, C4, D4, D4, D4, D4, C4, AFlat3, A3, D4, E4 and G4.” See No. 2,469,364.
Smell: Scents or fragrances of products which are primarily sold for their scent, such as perfumes, colognes and scented household products, cannot be trademarked on the grounds that those scents are functional. But scents that can otherwise identify a source of goods or services can be, and have been, registered:
- A floral scent for sewing thread and embroidery yearn: “The mark is a high impact, fresh, floral fragrance reminiscent of plumeria blossoms.” See No. 1,639,128.
- A cherry scent for synthetic lubricants: “The mark consists of a cherry scent.” See No. 2,463,044.
- A peppermint scent for office supplies: “The mark consists of a peppermint scent or fragrance.” See No. 3,140,700.
Touch: Registered trademarks which are defined solely by touch are rare, but do exist:
- A bottle of wine with a unique textured covering: “The mark consists of a velvet textured covering on the surface of a bottle of wine.” See No. 3,155,702.
- Braille jewelry: “The mark is a pictorial design which depicts the letter ‘C’ over the letter ‘K’ in both a Braille image and stylized letters.”
Taste: Attempts have been made to trademark a flavor, but so far the USPTO has refused all such attempts on the ground of functionality. For example, in 2013 an application was denied to trademark the flavor of peppermint for a nitro-glycerin medication applied orally by a spray bottle to treat chest pain.
Companies and people seeking to expand and further distinguish their brand should think outside the box and explore ways to interact with consumers by appealing to all their senses. No doubt the first company to successfully trademark a unique flavor will garner immediate publicity for its product!