What is NON-CONVENTIONAL TRADEMARK? What does NON-CONVENTIONAL TRADEMARK mean? NON-CONVENTIONAL TRADEMARK meaning - NON-CONVENTIONAL TRADEMARK definition - NON-CONVENTIONAL TRADEMARK explanation.
Source: Wikipedia.org article, adapted under https://creativecommons.org/licenses/by-sa/3.0/ license.
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A non-conventional trademark, also known as a nontraditional trademark, is any new type of trademark which does not belong to a pre-existing, conventional category of trade mark, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of uniquely identifying the commercial origin of products or services.
The term is broadly inclusive as it encompasses marks which do not fall into the conventional set of marks (e.g. those consisting of letters, numerals, words, logos, pictures, symbols, or combinations of one or more of these elements), and therefore includes marks based on appearance, shape, sound, smell, taste and texture.
Non-conventional trademarks may therefore be visible signs (e.g. colors, shapes, moving images, holograms, positions), or non-visible signs (e.g. sounds, scents, tastes, textures).
Certain types of non-conventional trademarks have become more widely accepted in recent times as a result of legislative changes expanding the definition of "trademark". Such developments are the result of international treaties dealing with intellectual property, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights, which sets down a standardised, inclusive legal definition. Single colour trademarks, motion trademarks, hologram trademarks, shape trademarks (also known as three-dimensional trademarks or 3D trademarks), and sound trademarks (also known as aural trademarks), are examples of such marks.
In the United Kingdom, colours have been granted trademark protection when used in specific, limited contexts such as packaging or marketing. The particular shade of turquoise used on cans of Heinz baked beans can only be used by the H. J. Heinz Company for that product. In another instance, BP claims the right to use green on signs for petrol stations. In a widely disputed move, Cadbury's (confectioners) has been granted "the colour Purple".
In the United States, it is possible, in some cases, for color alone to function as a trademark. Originally, color was considered not a valid feature to register a trademark Leshen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U.S. 166 (1906). Later, with the passage of the Lanham Act the United States Supreme Court in the case of Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995) would rule that under the Lanham Act, subject to the usual conditions, a color is registrable as a trademark.
The right to exclusive use of a specific color as a trademark on packaging has generally been mixed in U.S. court cases. Specific cases denying color protection include royal blue for ice cream packages (AmBrit Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987)); a series of stripes or multiple colors on candy packages (Life Savers v. Curtiss Candy Co., 82 F.2d 4 (7th Cir. 1950)); green for farm implements (Deere & Co. v. Farmhand Inc. (560 F. Supp. 85 (S.D. Iowa 1982) aff'd, 721 F.2d 253 (8th Cir. 1983)); black for motors (Brunswick Corp. v. British Seagull, Ltd., 35 F.3d 1527 (Fed. Cir.), cert. denied, 115 S. Ct. 1426 (1994)); and the use of red for one half of a soup can (Campbell Soup Co. v. Armour & Co., 175 F. 2d 795 (Court of App. 3d Cir., 1949)). A successful case granting color protection involved the use of the color red for cans of tile mastic Dap Products, Inc. v. Color Tile Mfg., Inc. 821 F. Supp. 488 (S.D. Ohio 1993), and a green-gold color for dry cleaning pads (Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995)).
Although scent trademarks (also known as olfactory trademarks or smell trademarks), are sometimes specifically mentioned in legislative definitions of "trademark", it is often difficult to register such marks if consistent, non-arbitrary and meaningful graphic representations of the marks cannot be produced. This tends to be an issue with all types of non-conventional trademarks, especially in Europe. United States practice is generally more liberal; a trademark for plumeria scent for sewing thread was registered in 1990. In Europe, a written description, with or without a deposited sample, is not sufficient to allow the mark to be registered, whereas such formalities are acceptable in the United States. However, even in the United States "functional" scents that are inherent in the product itself, such as smell for perfume, are not accepted for registration.