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  • Writer's pictureJeremy A. Briggs

Can I Obtain a Trademark for a Color or Scent? Understanding Non-Traditional Trademarks

When it comes to trademarks, most people think of logos, names, or slogans. However, intellectual property law recognizes that trademarks can extend beyond traditional forms. In some cases, you may be wondering if you can obtain a trademark for something unique, like a color or scent. In this article, we'll explore the concept of non-traditional trademarks and shed light on the possibility of obtaining trademark protection for colors or scents.

 


A woman scientist mixing a scent using a pipette from two beakers.

Exploring Non-Traditional Trademarks

Traditionally, trademarks have been associated with distinctive logos, words, or symbols that identify the source of goods or services. However, non-traditional trademarks have gained recognition in recent years, broadening the scope of what can be protected. These non-traditional trademarks include elements such as colors, scents, sounds, and even product shapes.

 

Trademark Protection for Colors

While it is challenging to obtain trademark protection for a single color in its entirety, there are instances where color combinations or specific color schemes can be protected. To secure a trademark for a color, you must demonstrate that it has acquired distinctiveness and serves as a source identifier for your goods or services. This typically requires extensive evidence of long-standing and exclusive use in the marketplace.

 

Trademark Protection for Scents

Obtaining trademark protection for scents can be even more challenging than colors. The U.S. Patent and Trademark Office (USPTO) requires a scent to be inherently distinctive or have acquired distinctiveness through extensive use. However, due to the abstract and subjective nature of scents, providing sufficient evidence to demonstrate distinctiveness can be complex.

 

Considerations and Challenges

When seeking trademark protection for colors or scents, it's essential to consider the distinctiveness and functionality of the element. If the color or scent is functional and essential to the product or service, it may not be eligible for trademark protection. Additionally, proving distinctiveness often requires substantial evidence, such as consumer surveys, market research, or long-standing usage data.

 

Consulting a Trademark Attorney

Given the complexities involved in obtaining trademark protection for non-traditional elements like colors or scents, it is highly recommended to consult a trademark attorney. A skilled attorney can guide you through the application process, help gather the necessary evidence, and navigate any potential challenges or objections from the USPTO.

 

Conclusion

While it's possible to obtain trademark protection for colors or scents, it can be a complex and challenging process. The distinctiveness, functionality, and acquired distinctiveness of the element play crucial roles in determining eligibility for trademark protection. To ensure the best chance of success, consult with a knowledgeable trademark attorney who can provide expert guidance throughout the application process.



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