Have you ever wondered why a certain sound instantly reminds you of a brand? Trademarks are not just logos and names—they can include sounds, colors, and more. But how do these unusual trademarks fit into the framework of intellectual property law?
This article explores unusual trademarks, focusing on colors and sounds, and the legal challenges faced in protecting them.
Unusual Trademarks: At a Glance
The Intellectual Property Code (IP Code)1 protects trademarks which are any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.2
However, today’s trademarks extend beyond these marks. In 2017, for example, the United States Patent and Trademark Office issued a registration to Netflix Inc. pertaining to its opening sound, which is described as “The mark consists of a sound mark comprising a musical composition featuring two sixteenth note timpani strikes on D2 and D3, simultaneously with which are played three dotted half notes on D2, D4, and D5.”
This example illustrates how trademark registration can encompass unusual trademarks, emphasizing the need to examine how these marks fit into the legal landscape.
3 Unusual Trademarks You Need to Know
Here are three unusual trademarks that offer insight into how the law handles these marks:
1. Sounds
Sound marks are not visually perceptible. Since our current IP Code does not afford protection to marks that are not visually perceptible due to the requirement of distinctiveness, an amendment is required. Globally, however, sound marks are recognized and protected.
2. Scents
Like sound marks, scents cannot currently be trademarked in the Philippines, as the IP Code does not recognize them as protectable marks. However, countries like the United States and Canada allow scent trademarks, provided they meet specific legal requirements before registration.
3. Colors
The Intellectual Property Office’s (IPO) Memorandum Circular No. 2023-001, which amended the Revised Trademark Regulations of 2017, offers guidelines on the protection of “non-conventional” marks like colors, position marks, motion marks, and hologram marks. Although the Philippines has increasingly recognized non-conventional marks, protection remains limited to visual marks, as outlined in the provisions of the IP Code.
Currently, at least three bills3 propose further amendments to the IP Code, aiming to remove the requirement for trademarks to be “visible” signs. If enacted, these bills would expand the definition of a “mark” to include “any sign or combination of signs,” paving the way for legal protection of unusual trademarks in the Philippines.
Conclusion
Unusual trademarks demonstrate the need for intellectual property law to evolve to protect distinctive brand elements beyond traditional ones. By exploring these cases, you gain a better understanding of the complexities of securing legal protection for unusual marks.
To know more about registering unusual trademarks, book a consultation with a trademark attorney. You may also email us at admin@pinollaw.com.
1 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for other Purposes, Republic Act No. 8293, §1 (January 1, 1998) [hereinafter Intellectual Property Code of the Philippines].
2 Intellectual Property Code of the Philippines, §121.
3 House Bill No. 799, House Bill No. 2672, House Bill No. 3838
