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When most people think of a trade mark, they think of a word or a logo. But the law allows for a much wider range of signs to be registered, including shapes, colours, sounds, and even moving images. These are known as non-traditional trade marks, and while they can provide powerful brand protection, they come with their own unique challenges.
Shape marks allow you to protect the three-dimensional appearance of your product or its packaging. However, the Trade Marks Act contains specific exclusions under Section 3(2) for shapes that result from the nature of the goods themselves, shapes necessary to obtain a technical result, and shapes that give substantial value to the goods. These exclusions exist to prevent businesses from using trade mark law to secure a permanent monopoly over functional or aesthetically valuable shapes that should properly be the subject of patent or design protection.
Even if your shape does not fall foul of Section 3(2), it still needs to be distinctive. The courts have made clear that the average consumer is not in the habit of making assumptions about the origin of products based on their shape or packaging alone. As a result, the bar for inherent distinctiveness is higher for shape marks than for word marks. A shape must depart significantly from the norms or customs of the relevant sector to be accepted. The more closely the shape resembles what consumers would expect the product to look like, the harder it will be to register.
That said, shape marks can be and are registered, particularly where the shape is unusual enough to stand out or where the applicant can demonstrate that consumers have come to recognise the shape as indicating a particular trade origin. Perfume bottles, distinctive vehicle designs, and unique packaging configurations are all examples of successfully registered shape marks.
Colour marks present even greater challenges. While the law recognises that a colour, in principle, can have a distinctive character and be capable of distinguishing goods or services, consumers are generally not in the habit of identifying the origin of products based solely on colour. As a result, single colour marks are very rarely registered without substantial evidence of acquired distinctiveness. The evidence required is typically very persuasive and must demonstrate that the colour alone, when used on the relevant goods or services, would be recognised by consumers as indicating a specific trade origin.
Colour combinations may be somewhat easier to register, but they still face significant hurdles. The colours must be systematically arranged, associating them in a predetermined and uniform way. Simply stating that a mark consists of two colours without specifying how they are arranged is unlikely to meet the requirements.
Sound marks are another category of non-traditional trade mark. The law accepts that sounds can function as trade marks, provided they are capable of distinguishing goods or services and can be represented graphically. The graphic representation requirement for sound marks is met by musical notation on a stave showing a clef, notes, rests, timing, and pitch. A written description of a sound alone is not sufficient, nor is a simple list of notes without timing indications.
The distinctiveness of a sound mark depends on whether the average consumer would perceive the sound as indicating trade origin. Very simple sounds, well-known melodies used generically in a particular trade, or popular music in connection with entertainment services are unlikely to be accepted without evidence of acquired distinctiveness. Original compositions that are sufficiently complex and distinctive may be accepted without such evidence.
Moving image marks, or motion marks, are also registrable in principle. These require clear, precise representation, which may involve a series of still images accompanied by a description of the movement depicted.
For all non-traditional marks, the key challenges are graphical representation and distinctiveness. You need to be able to show exactly what your mark consists of and demonstrate that it functions as an indicator of trade origin rather than simply being decorative, functional, or generic.
