Can You Trademark a Shape?

Can you trademark a shape? If so, how about a sound or a color or a motion? Perhaps surprisingly, yes you can. But it isn’t easy.

Commonly known as non-traditional trademarks, protection can be afforded shapes, sounds, colors and more. More importantly, they can even be registered with the U.S. Patent and Trademark Office. However, the registration process for non-traditional trademarks is not for the inexperienced or the faint of heart because registration can be very difficult, even though they may fulfill the essential function of identifying the commercial origin of a good or service in a unique manner.

If you have been using a non-traditional trademark to identify the source of your products, then you already know how valuable (and powerful) these marks can be. If you don’t think so, just ask Coca-Cola about its fluted bottle shape, or ask MGMG about its iconic lion’s roar, or ask NBC about its familiar three-note chimes. But, as we mentioned, it isn’t easy and numerous companies have been on the losing end of a registration battle, including Harley-Davidson, which tried (unsuccessfully) to trademark the sound of its motorcycles.

Still, the value inherent in such marks, especially those which may already have established the coveted “secondary meaning” in relationship to their owners, may outweigh the challenge of proving, registering and protecting these non-traditional trademarks.

David Baker
The Airsoft Lawyer