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Article Title International In-house Counsel Journal Vol. 7, No. 25, Autumn 2013, 1 I Can Name that Brand in Three Notes: Non-Traditional Trademarks for Traditional Goods KATHRYN BELLEAU Assistant General Counsel - Intellectual Property and Procurement Legal, Pitney Bowes Inc., USA People are exposed to trademarks on a daily basis. Trademarks are a part of everyone’s everyday life. Trademarks are used on clothing, food, entertainment, cosmetics, etc. Unlike other aspects of law, there is no minimum educational requirement or level of sophistication to understand and/or recognize what a trademark is and how it relates to the goods and/or services with which it is used. Kids can readily recognize a brand from a young age, e.g., FISHER-PRICE toys. Teens recognize the well-known brands, e.g., COKE for soft drinks and NIKE for sports shoes. Along with these words that are used as trademarks, brand owners also use stylized lettering or designs. COCA-COLA uses stylized lettering for their soft drinks and Nike utilizes a Swoosh design on its sports shoes. These designs are also well recognized as trademarks by the general public. What people are less familiar with are the non-traditional marks that companies use to distinguish their goods and/or services from those of their competitors. One of the most common is the use of color. Other non-traditional types would be the non-functional shape of the goods or packaging for the goods; sound, usually in the form of musical notes; texture, the feel of a product or label therefor; finally, smell. All of these non- traditional trademarks need to be handled in a particular manner in order to ensure that rights are established and, once perfected, are not lost by misuse. Because a trademark identifies the source of the goods and/or services by the very nature of what a trademark is, words and designs are not the only manner of identifying the source. An identification can be made based on many different factors, all of which fall under this “identity of source” definition. In any article about trademarks, whether traditional or not, it is important to reiterate the definition propounded by the United States Patent and Trademark Office is: A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. (http://www.uspto.gov/trademarks/index.jsp) The term “trademark,” as used in this article, shall be used to denote a trademark or a service mark. We are familiar with a trademark that is a word or symbol, e.g., CITIBANK; a symbol or device, e.g., the NIKE Swoosh , or a combination of a word and design. These trademarks identify the source of the goods/services, which is the foundation of trademark law. When a consumer looks at a word or symbol that identifies the source, he/she expects certain consistency and level of quality of the product associated therewith. International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online 2 Kathryn Belleau There are other types of trademarks companies utilize which do not fall under the traditional concept of a trademark, for example, color, shape, sound, smell, and touch. These are more difficult to identify. In fact, one may not even realize that what they are used to see, smelling, touching, etc. is actually a company’s trademark. When a consumer identifies a color, for example, with a particular product and/or company that is the true definition of a trademark and trademark usage as it ultimately identifies the source. In order to get a better idea of these specific types of non-traditional trademarks, I have broken out each unique type of trademark, describing the features and benefits of each type of trademark, what is deemed an acceptable use, from not only a pure trademark perspective, but also from a Trademark Office perspective to understand what is proper use, and what is an acceptable specimen. The basic focus of this article is offered from a U.S. perspective, however, at the end of this treatise I have identified several jurisdictions where such non-traditional trademarks may be accepted on a global basis. Not every international trademark office has accepted these non-traditional trademarks as appropriate trademark use and does not give such marks any protection. When looking to non-traditional trademarks, the trademark owner must take into consideration the fact that there is a big educational process involved in getting the consumers to link these trademarks with its goods and/or services. The association needs to be made in the consumer’s mind when seeing, hearing, smelling or feeling these marks with the relevant goods and/or services. This also requires use of the non-traditional mark(s), under U.S. law. In order for a non-traditional mark to acquire secondary meaning as a trademark or be registered based on acquired distinctiveness, U.S. law recognizes five (5) years continuous and exclusive use of the mark as satisfying this criteria for registering such a mark. In addition, because of the nature of these trademarks and the scope of protection afforded and registration on the Principal Register, there needs to be a considerable amount of evidence in support of this claim. Appropriate evidence would be, in addition to the five (5) years of use, examples of advertising and promotional material relevant to the type of mark. A color mark will likely be promoted differently than a scent mark. Advertising expenditure is taken into consideration. It will, likely, at least initially, be more expensive to promote the non-traditional trademark as a brand of your company. The amount of money spent and the type of advertising done are an important consideration. However, probably the most persuasive evidence of all, consumer declarations. Since a trademark is supposed to identify the source of the goods and/or services, a consumer declaration to that effect is given a considerable amount of weight when determining whether or not this non-traditional trademark has acquired secondary meaning entitling it to formal registration. Focus groups, which can be an expensive though well-recognized resource, should also be considered. If research is conducted and a mark has been registered under §2(f), this means that the trademark owner has relied upon, and been deemed to have, a protectable non-traditional mark based on acquired distinctiveness and has furnished some or all of the aforementioned evidence in support of this claim. COLOR There are different types of color marks. There are the ones where the word mark or design itself is of a specific color used solely in conjunction with the specific word. An example of this is for supermarket services. The color marks being discussed herein that are deemed to fall within the non-traditional description relate to color as applied to the goods, a portion of the goods, or the packaging for the goods. Brand Clearance 3 An example is: The drawing is hatched for the colors purple and green; the mark covers a variety of goods including CDs and luggage and also entertainment services. The leading case in this area is In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417 (Fed. Cir. 1985). It relates to the color pink as applied to fiberglass residential insulation. The color pink was deemed not functional because the color pink is not required for the product to work. It does not identify a feature, quality or function of the product. In addition, the color was found to be registrable because the applicant submitted evidence in the form of advertising, packaging, consumer recognition, etc. for the requisite period of time that showed that the color had acquired secondary meaning. Merely entering a claim of long-term use is not sufficient to support a claim of acquired distinctiveness without the additional factors. In addition, Owens Corning, to promote its color PINK, developed a concerted advertising campaign. It not only used that color scheme for the wording and background of its advertising, but used the Pink Panther as its “spokesperson.” This was a subtle but effective way of educating the public that PINK is a color to be associated with Owens Corning and, initially, their home insulation, but ultimately, other offerings from the company. As with traditional trademark applications, a drawing of the mark is required. “Color marks are visual and should be depicted in color drawings, accompanied by: (1) a color claim naming the color(s) that are a feature of the mark; and (2) a separate statement naming the color(s) and describing where the color(s) appear and how they are used on the mark. 37 C.F.R. §2.52(b)(1).” (TMEP §1202.05 (d)) There is a basis in practicality when it comes to showing the non-traditional mark in a drawing; sometimes depending upon what the goods actually are, for example, if the mark consists of color(s) used on liquids or powders. The mark might consist of fuchsia body oil or red, white, and blue granular washing machine detergent. In these cases, the nature of the drawing will depend on the manner of use of the liquid or powder. If the liquid or powder is visible through the product package, the drawing should consist of the shape of the product package shown in broken or dotted lines, with the description of the mark identifying the color(s) of the liquid or powder.
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