Types of non-traditional trademark
Protection for non-traditional trademarks in Japan
Filing for protection of non-traditional trademarks in Japan

Conventionally, trademarks cover symbols, letters, numerals, words, devices or combinations thereof. However, various new sorts of marks have been introduced into commerce and trade across the world and have recently become more widely accepted. This expansion goes hand in hand with the legislative changes that broaden the definition of "trademark" and provide new types of value for business globally.

Types of non-traditional trademark

As recognised by the World Intellectual Property Organization Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), "the types of signs that are nowadays considered as being capable of constituting a trademark have expanded beyond words or figurative devices".(1) The SCT groups non-traditional trademarks into two categories: visible and non-visible signs.

Visible signs
Visible signs include:

  • 3D marks;
  • colour marks;
  • holograms;
  • slogans;
  • titles of films and books;
  • motion or multimedia signs;
  • position marks; and
  • gesture marks.

Non-visible signs
Non-visible signs include:

  • sound marks;
  • olfactory marks (ie, smell marks);
  • taste marks; and
  • texture or feel marks.

Protection for non-traditional trademarks in Japan

A growing number of countries have expanded their trademark protection systems to cover non-traditional trademark registration. Some countries have specific laws and regulations governing how non-traditional trademarks may be registered and what types of non-traditional trademark are protected. Other countries, on the other hand, rely on wide interpretations of existing rules to protect non-traditional trademarks. Moreover, various countries still stick to the protection of conventional marks only.

Japan is one of the countries that expressly include protection of non-traditional trademarks in its trademark law. The Trademark Act originally provided protection for only one type of non-traditional trademark – 3D marks. In 2014, an amendment to the Trademark Act was published, which has been in force since 1 April 2015. Under the amended Trademark Act, sounds, holograms, colours, positions and motion marks are registrable trademarks. The Examination Guidelines for Trademarks were also amended to this effect.

In 2020, a further revision of the Examination Guidelines for Trademarks clarified that exterior and interior building designs may be protected as trademarks under the category of 3D marks.

Filing for protection of non-traditional trademarks in Japan

When filing for a non-traditional trademark in Japan, the applicant must include a specific description and method of representation, which varies depending on the type of non-traditional mark.

Sound marks
For a sound mark, the description must be made by entering the necessary matters for the identification of the sound for which trademark registration is sought using characters, a full score or a combination thereof; provided, however, that it may be described using a one line stave in addition to the full score, if required. A sound spectrogram (sonogram) notation is not an acceptable means to represent a sound mark in an application.

Hologram marks
For a hologram mark, the description must be made by a drawing or photograph, or two or more different drawings or photographs, indicating the state before and after changes in an identifiable way. This may be various photos or a drawing that shows the different display surfaces depending on the viewing angle – for example, three drawings displaying the surface seen from the left, the front and the right.

Colour marks
Colour marks can be tricky as colours can be recognised as trademarks only when it is clearly stated in the application that a mark consists only of colours. A colour mark that evidently includes specific characters or figures will not be recognised as a colour mark, but may fall under the category of another type of mark (eg, a figurative mark or conventional logo mark).

Position mark
For a position mark, the representation of a mark in an application must be made by one or more drawings or photographs indicating the way in which the mark and the position to which it is attached is specified by drawing the mark with solid lines and other parts with broken lines.

Motion mark
For a motion mark, the description of the mark must be made by a drawing or photograph, or two or more different drawings or photographs, indicating the state of change as time proceeds in an identifiable way. The applicant may use dotted lines to show the direction of movement or provide multiple drawings in a series. The applicant must also provide a detailed description which renders the mark recognisable as a motion mark.


Protecting non-traditional trademarks can present several challenges. For example, filing an application for a non-traditional trademark requires a specific type of description and representation. Certain types of non-traditional trademark also require a different examination approach by the examiner to identify distinctiveness. This is one of the reasons why some types of non-traditional mark (eg, smells and tastes) are not recognised in many countries.

However, the introduction of specific protection for non-traditional trademarks in trademark systems around the world is good news for brand owners. The revision of Japan's trademark law and the subsequent expansion of protection for non-traditional trademarks provides brand owners with a range communication tools to use when presenting their products or services to the public.

For further information on this topic please contact Paramee Kerativitayanan at Nishimura & Asahi by telephone (+66 2 168 8228) or email ([email protected]). The Nishimura & Asahi website can be accessed at www.jurists.co.jp.


(1) World Intellectual Property Organization Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications, "New Types of Marks", Geneva, 2006. Available here.