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Nontraditional Trademarks: The Outer Limits of Trademark Protection

Fri Apr 22nd, 2022 by  Trademarks

Trademarks protect information that identifies the source of a product and helps consumers differentiate that product from others. In the vast majority of cases, this information takes the form of brand names, logos, slogans, tag lines, and jingles. After all, the easiest way for consumers to identify the source of a product is through a distinctive mark that stands out from others. But trademarks can also encompass other less traditional, less obvious brand elements that nonetheless serve as source-identifiers. These nontraditional trademarks may be eligible for trademark registration with the United States Patent and Trademark Office (USPTO) with the help of an Alabama trademark lawyer

What Are Nontraditional Trademarks? 

Nontraditional trademarks are any elements that serve as source-identifying information that fall outside the traditional realm of trademarks. They include virtually any unique aspect of a product, including its shape, color, texture, smell, arrangement, configuration, or design. Some famous examples of nontraditional trademarks include: 

  • The three-dimensional shape of Coca-Cola bottles (73088384)
  • The “sweet, slightly musky, vanilla fragrance” of Play-Doh (87335817)
  • The red outsole of Christian Louboutin footwear (77141789)
  • NBC’s three-note chime (72349496)

While none of these trademarks are “traditional,” they nonetheless are instantly recognizable as being associated with particular brands.

Nontraditional Trademarks Are Registrable under Certain Circumstances 

Nontraditional trademarks generally are registrable on the same basis as traditional trademarks. As such, the owner must show that they are in use in commerce (or that there is an intent to use them in commerce) and that they are distinctive. But applicants for registration of nontraditional trademarks face a few special considerations, as outlined below. 


It is a maxim of trademark law that trademarks cannot serve any function other than identifying the source of a product. The functionality of a product is exclusively the realm of patent protection. While allegations of trademark functionality generally are not a major issue for nontraditional trademark applicants, they can be a stumbling block for nontraditional applicants because the shape, color, or smell of a product can sometimes confer a functional advantage. For example, the shape of a bottle might make the bottle easier to hold, while one particular shade of a color might make that color easier to see in low-visibility conditions. Trademark functionality can thus serve as a basis for trademark registration refusal. 

Acquired Distinctiveness 

The strength of a trademark depends upon its distinctiveness. While some trademarks are inherently distinctive due to their uniqueness (e.g., “Kodak,” “Pepsi,” etc.), others are distinctive only because they have acquired distinctiveness over time through their association with a particular brand (e.g., UPS brown, Owens Corning pink, etc.). Nontraditional trademarks are much more likely to fall into this category than traditional trademarks, which requires the applicant for registration to produce additional evidence that the nontraditional mark has acquired distinctiveness. 

An Alabama Trademark Lawyer Can Help You Register Your Nontraditional Trademark

Nontraditional trademarks are registrable with the USPTO, but doing so can often be tricky. You can maximize your chances of success with the help of an Alabama trademark lawyer. To get started, please contact an attorney at AdamsIP by calling 251-289-9787 or by using our online contact form. We assist clients throughout the state including Mobile, Huntsville, and Birmingham.