3 Types of Relatively Unknown Trademarks That Can Help You Protect Your Business
We generally recognize that a trademark is any word, slogan, or symbol used to identify the source of goods or services used therewith. McDonalds for restaurant services, the Nike “swoosh” for shoes, and the iconic apple for, what else, computers. But did you know that you also can protect colors as trademarks? Sounds? And even the overall look and feel of a business? You can, and here’s how.
1. Trade Dress
Trade dress is a type of trademark that generally protects characteristics of the visual appearance of a product, its packaging, or even the overall look and feel of a business so long as it signifies the source of the product to consumers.
What can be considered trade dress you may ask? We’ll let’s look at some examples:
A. Product Design
The design of product packaging can be registered as a trademark provided that the packaging identifies the source of the product and is not attempting to be registered to protect some functional element of the packaging (that would be a patent). The best example of this we know of is the shape of a Coca Cola bottle. Everyone recognizes the hour-glass looking design as containing that little slice of heaven from those folks from Atlanta. So when you see the design of the traditional Coca Cola bottle and you recognize it as the bottle in which Coca Cola provides its product, that is the perfect example of packaging which functions as trade dress and, correspondingly may be protected by a Trademark Registration.
B. Color Schemes
Color schemes of restaurants as well as similar features of businesses can also be protected as trade dress under U.S. Trademark Laws. For instance, if you have been operating a uniquely designed or themed restaurant or business for some time and then begin to franchise the same the color scheme and other elements of your business may be protectable as trade dress. For instance, on the East Coast we have a restaurant franchise that is expanding rapidly called Five Guys. Five Guys offers great burgers and fries. For our purposes today, however, it is important to know that no matter how the restaurants appear on the outside they all have one common theme on inside: red and white checkerboard tile walls. So when you walk into the restaurant, even if you did not see the sign on the front of the building telling you that you are in a Five Guys, you know that those red and white checkerboard tiles mean that you are about to have a bacon double cheeseburger with a side of double-fried french fries like no other. You know you are in a Five Guys. And if you know this merely by looking at the color scheme on the walls that is the fundamental point of trade dress protection.
C. Overall Appearance
Additionally, and drawing upon the above, an overall appearance of a trademark used in connection with a product or service can be protected. This is where trade dress gets a little broad and often difficult to digest. But for our purposes we’ve talked about color schemes and package designs. The law has also been used to extend to generally recognized images and manners of presentation as well. We think the ongoing story of the Naked Cowboy best captures this concept.
For any of you who have been to New York City in the past decade or so there is symbol of America right in Times Square that cannot be missed. The ball that drops every year at the stroke of midnight you may ask? No. The giant billboards and flashing neon and LED screens 30 stories high? Nope. We are talking about Robert John Burck, aka – the Naked Cowboy.
Since 1997 the chiseled and tanned Naked Cowboy has strolled through Times Square wearing nothing but a pair of white briefs, white boots, matching cowboy hat, guitar and a smile singing to tourists and posing for photographs. Like the U.S. Postal Services’ age-old motto neither rain nor sleet nor dark of night can stop the Naked Cowboy. You can catch him strolling through Times Square during the dog days of summer through the coldest days of winter – all still in his iconic skimpy manner of dress.
A few years back Mars, Inc., the owners of the M&M brand of candies, opened M&M World in Times Square. As the popularity of the Naked Cowboy grew Mars thought it would be a great marketing ploy to parody the Naked Cowboy with a Times Square billboard of one of their M&M characters dressed in white briefs, white boots, the white cowboy hat and white guitar. Well the Naked Cowboy wasn’t down with that tune. He sued. And guess what? He won (or at least won a settlement). In short, his lawyers argued and convinced Mars that the Naked Cowboy’s overall likeness and image was protectable and, accordingly, by posting the billboard Mars was infringing upon the Naked Cowboy’s trademark – and trade dress – rights.
So as the Naked Cowboy teaches us even the overall appearance of a performer or otherwise can be protected as trade dress if that overall appearance has sufficient recognition value.
A post script to this example, as of press time it has been reported that the Naked Cowboy is now enforcing his rights against a performer who has materialized and is calling herself the Naked Cowgirl. Given that he has already enforced his trade dress against one of the world’s largest candy manufacturers, our recommendation to the Naked Cowgirl: get outta Dodge.
2. Colors
Another form of trademark protection can be found in the ability to protect colors. Not color schemes as above. Just colors.
There is perhaps no better example of this in recent times then UPS’s attempts to register the color brown in connection with shipping services. In the early 2000s UPS determined that it wanted to lock up the color brown. The U.S. Patent and Trademark Office initially denied their efforts.
Ultimately it was held that a business can protect a mere color as a trademark, but only if it can show substantial evidence of acquired distinctiveness in the color as a trademark. In other words when consumers see a specific color they think of your goods or services. That’s why, for the past several years, UPS has run the ad campaign “What Can Brown do for you?” They are ingraining in the minds of the consumer that when they see the color brown they think about UPS’s shipping services.
So you can protect merely a color, but it will cost you a lot of green.
3. Sound Marks
Lastly did you know you can protect sounds as trademarks? It’s true. The rumble of a Harley Davidson. The “Bum ….. bum bum bum bum” of Intel. Even the message alert sound of plane that Southwest Airlines uses in its commercials. These can all be protected as trademarks provided, as above, the trademark holder can show that in the minds – and in this case ears – of the consuming public when they hear that specific sound they think of the specific company’s goods or services.
Conclusion
So why do these matter? In protecting your brand identity people are often constrained to thinking about protectable trademarks as being merely a slogan, a logo, or a company’s name. But as we see above, a Trademark Registration can extend to protect a whole host of other things that consumers use to identify the source of a product or service.
So if you are a performer with a unique image and persona, a business that uses a specific pattern of décor or layout, or package your product in a unique package design that your competitors love to imitate remember the U.S. Trademark Laws are here to help you protect these signature trademarks as well.
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