Trademark Primer

Non-Traditional Trademarks

Although we frequently think of word marks, logos and slogans when we think of trademarks, there is a considerably broader scope of subject matter that can serve as, and be registered as, a trademark. Sounds, tastes, smells, colour, holograms, motion marks, three-dimensional shapes, modes of packaging goods, textures, or the positioning of a symbol on an object can all serve as, and be registered as, trademarks, as can combinations of these features.

There are, however, special provisions that apply to these types of trademarks. For example, if you wish to register a sound as a trademark, you must supply in your trademark application both a clear and concise description of the sound, as well as an electronic recording of the sound.

Also, most non-traditional trademarks will not be considered to possess inherent distinctiveness. That means that consumers will likely not perceive these features as inherently designating that a product or service originates from a particular source. This means that affidavit evidence must be filed during examination of the application to prove that the trademark has acquired distinctiveness, or become recognized by consumers as having brand significance, before the trademark application will be approved by the Canadian Intellectual Property Office.