11 - Protectable Trademark Subject Matter in Common Law Countries and the Problem with Flexibility

Summary

Words, names, and logos used as trademarks can provide consumers with useful information about a product’s source or qualities.¹ Examples are BILLABONG for clothing, SINGAPORE AIRLINES for airline travel services, WHITTAKER’S for chocolate, and Starbucks’ mermaid logo for coffee. Today some companies are also claiming trademark rights in other subject matter that is non-verbal or non-visual, including the exterior and interior design of buildings, the three-dimensional shape of packaging and products, colors, sounds, scents, textures, and flavors.² Examples of such “non-traditional” marks registered in the United States are the design and layout of Apple’s retail store; a skull-shaped bottle for alcoholic beverages sold by Globefill, Inc. under the Crystal Head Vodka brand; LEGO’s Minifigure shape for toy figures; the color magenta used in advertising for T-Mobile’s wireless telecommunication services; the sound of a Zippo cigarette lighter opening, igniting, and closing; the scent of Play-Doh for Hasbro Inc.’s toy modeling compound; and the texture of leather wrapping around the middle surface of a bottle of wine sold by the David Family Group.³ While companies have applied to register flavors (such as an orange flavor for pharmaceuticals),⁴ as of this writing the author has been unable to find a registered flavor mark in the United States or any other country.