Trademark
& IP Blog
Practical insights on trademarks, licensing, enforcement, and brand strategy for growing businesses and creators.
Published by Randi Leath, Esq.
Beyond Names & Logos: 7 Non-Traditional Trademarks You May Already Be Using
Trademarks aren’t just words and logos. Sounds, colors, product design, packaging, and even scent can function as powerful source identifiers. This post explores seven non-traditional trademarks you may already be using.
Photo by All-Pro Reels, CC BY-SA 2.0
Matthew McConaughey has been busy at the U.S. Patent and Trademark Office recently, securing eight trademark registrations covering aspects of his voice, delivery, and related brand elements, including a sound mark for audio of McConaughey saying his iconic “Alright, alright, alright” line from Dazed and Confused.
Through these registrations McConaughey is attempting to utilize the lesser known sound mark protections under trademark law to help curb unauthorized AI use of his voice and likeness.
If you were surprised to learn that a sound can be trademarked at all, you are not alone.
When most people think of trademarks, they think of names and logos, but those are only the beginning. Sound marks, like the one registered by McConaughey, are just one example of a much larger group of non-traditional trademarks that businesses use every day, often without realizing the role those elements can play in protecting and strengthening their brands.
Today, we’re going to explore seven types of non-traditional trademarks you may already be using, without even realizing it.
You may be surprised by how much of your brand is already doing trademark work for you.
What is a Trademark — Really?
At their simplest, trademarks are source identifiers. They are anything that helps consumers connect the products or services they are buying with their source and distinguish one brand from another.
Names and logos do a lot of that work, but trademark law allows brands to signal who they are in many other ways as well.
Below are several common types of non-traditional trademarks you may already be using, and could be leveraging as valuable brand assets.
1. Sound Marks
Sound marks protect distinctive sounds that identify a brand as the source of goods or services.
Familiar examples include:
Netflix: the short “ta-dum” sound that plays before its content
NBC: the iconic three-note chime (often referred to as the “NBC chimes”)
If customers recognize your business by sound alone—before seeing a name or logo—you may already be using a sound mark.
In practice, these marks often require consistent and repeated use so consumers come to associate the sound with a single source
2. Motion Marks
Motion marks protect distinctive movement or animation that functions as a source identifier.
A well-known example:
Disney’s revamped animated opening sequence featuring Cinderella’s Castle that appears before Disney films. Registered 2023. US Registration Number: 6,957,379.
Motion marks can also include:
Animated logo reveals
App loading screens
Repeated transitions used across digital content
If a viewer could recognize your brand based on a specific movement or animation alone, even before seeing your name or logo, that motion may be functioning as a trademark. As with other non-traditional marks, consistency is key. The motion must act as a brand signal, not mere decoration.
3. Trade Dress
Traditionally, trade dress has covered the packaging or “dressing” of a product, including the commercial environment in which the product or service is sold. It protects the total image and overall appearance of a product or service, which may include features such as size, shape, color or color combinations, texture, graphics, and other visual elements working together.
The layout of a restaurant, the design of product packaging, a consistent store aesthetic, or a signature color scheme used together can all contribute to trade dress. It is about the total commercial impression created by those elements working together.
Well-known examples include:
In-N-Out Burger
The distinctive interior restaurant design featuring white sectional walls with horizontal red stripes, glass panels above the dividers, red chairs and booth upholstery, white countertops and tabletops, red and white tile around the ordering area, and a silver counter — all working together to create a recognizable dining environment.
US Registration Number: 4,839,216
Shell
The yellow canopy with a red stripe along the bottom and the word “Shell” displayed in red on the canopy, creating a recognizable gas station presentation associated with the brand.
US Registration Number: 2,985,351
Maker’s Mark
The distinctive red wax-like coating that covers the cap of the bottle and trickles down the neck in a freeform, irregular pattern, first registered in 1985 and later expanded in a subsequent registration in 2021 to protect wax extending further down the body of the bottle as its heavily wax-dipped "slam dunk" bottles gained popularity among collectors and developed a robust secondary market.
US Registration Numbers: 1,469,925; 6,318,596
Over time, trade dress protection has expanded beyond traditional packaging and commercial environments to cover certain non-functional elements of the product itself, including some of the categories discussed below, such as configuration, color, and scent marks.
In fact, almost anything can function as trade dress if it’s non-functional and its overall presentation becomes so uniquely tied to a brand in consumers’ minds that they immediately recognize the source of the goods or services.
4. Color Marks
Color marks are a form of trade dress that protect specific colors (or color combinations) used consistently in connection with particular goods or services.
For goods, a color mark may appear on the entire surface of the product, on a distinct portion of the product, or on all or part of its packaging. For services, color may be used on signage, uniforms, advertising materials, or other materials used in rendering and promoting the services.
Recognizable examples include:
Tiffany & Co. — Tiffany Blue
(Pantone 1837 Blue)
Tiffany Blue has been protected as a registered color trademark since 1998 and was later formalized as a custom Pantone shade, 1837 Blue, created exclusively for Tiffany.
US Registration Number: 2,416,794
UPS — Pullman Brown
(Pantone 462C)
UPS first registered the color brown in 1998 for use on its trucks. In 2004, it obtained an additional registration for the specific shade of chocolate brown, Pantone 462 (aka “Pullman Brown”), for use on vehicles and uniforms.
US Registration Numbers: 2,131,693; 2,901,090
Owens Corning — Pink
Registered in 1987, Owens Corning Pink was the first single-color trademark registered with the USPTO. The company has since expanded its portfolio of color mark registrations to cover use of the color across a variety of building and insulation products, including its well-known insulation materials.
Original 1987 US Registration
Number: 1,439,132,
There’s no doubt that color alone can serve as a powerful source identifier. Because color is often used decoratively or functionally, these marks can be trickier to claim. Successful color marks typically require strong evidence of consistent use in a specific non-functional context over a period of time long enough for consumers to associate the color as an indicator of the source of the goods .
5. Configuration Marks
Configuration marks are a form of trade dress that protect the distinctive overall design of a product itself, which can include its shape, contours, and other three-dimensional design features that together function as a source identifier.
Classic examples include:
Porsch 911 Configuration
Porsche holds two configuration trademark registrations protecting the distinctive silhouette and body design of the Porsche 911, a shape made recognizable through decades of consistent use. The first registration, issued in 2004, covers the 993 generation. A second, issued in 2024, takes a broader approach, intending to protect the 911’s configuration across all future generations.
US Registration Numbers: 2,655,378; 7,603,348,
Coca-Cola Drinkware
Coca-Cola holds configuration trademark registrations for various drinkware designs that are recognizable even without labels or logos. Most notably is its distinctive contour bottle shape, originally introduced in 1916 and registered in 1960. The company has continued to protect the three-dimensional shape of its bottles and related packaging as source-identifying product configurations.
Original Coke Bottle US Registration Number: 696,147
Crocs Shoe Design
Crocs holds configuration registrations covering specific design elements of its foam clogs, including the distinctive pattern of round ventilation holes on the upper, textured side panels with trapezoidal openings, and additional heel and strap detailing. These non-functional design features work together to create a recognizable product configuration associated with the Crocs brand, a distinctive design many consumers love and many love to hate.
US Registration Numbers: 5,273,875; 5,149,328
Configuration marks can be tricky to identify. The challenge is often distinguishing between design elements that identify source and those that serve a functional purpose. Trade dress protection is not available for features that are functional, meaning they affect the product’s performance, cost, or quality. Even partial functionality can limit or defeat a configuration claim, so the focus must be on elements that exist to signal brand, not utility.
If a customer could recognize your brand based on the overall design of your product alone, and that design solely exists to distinguish your product rather than serve a practical/functional purpose, you may have a configuration mark on your hands.
> Practical Tip:
If your product design provides a competitive advantage because of how it works, trademark protection may not be available. In those cases, patent protection may be worth exploring with a patent attorney.
6. Scent Marks
Scent marks are also treated as a type of trade dress. They protect distinctive, non-functional scents that identify a brand.
Notable examples include:
Crayola Crayons
The distinctive scent of its crayons, "a scent reminiscent of a slightly earthy soap with pungent, leather-like clay undertones."
US Registration Number: 7,431,203
Moroccanoil
The signature fragrance used across its hair care products, "a high impact fragrance primarily consisting of musk, vanilla, rose, and lavender."
US Registration Number: 4,057,947
Scent marks are rare and closely scrutinized, but they demonstrate how sensory elements can function as trademarks. Because scents are never considered inherently distinctive, successful registration requires substantial evidence of acquired distinctiveness showing that consumers associate the scent with a single source. To qualify, the scent must also be non-functional and not essential to the product’s use or purpose.
7. Hologram Marks
Hologram marks protect distinctive holographic images used consistently to identify source. These marks are commonly used to signal authenticity and combat counterfeiting.
Examples include:
Upper Deck
The oval hologram authentication seal used on collectible trading cards & memorabilia
US Registration Number: 2,619,227
American Express
The square holographic image that appears on its credit cards, used as a consistent security and brand-identifying feature.
US Registration Number: 3,045,251
To function as trademarks, holograms must be used consistently and as a source identifier, not merely as variable security features.
Final Thoughts
If reading through these examples made you start mentally checking off elements of your own brand, you’re not alone. Many businesses are already using non-traditional trademarks without realizing it.
The brands that take the time to recognize and protect those assets early are often the ones best positioned to defend, expand, and leverage them over time.
Sometimes the most valuable intellectual property isn’t something you create next. It’s something you’ve been using all along.
TL;DR:
Trademarks are not limited to names and logos. At their core, they are source identifiers — anything that helps consumers connect goods or services to a particular brand. Sounds, motion, packaging, product design, color, scent, and even holograms can all function as trademarks when used consistently and in a way that signals source. Trade dress protects the overall look and feel of a brand and has expanded over time to include certain non-functional elements of the product itself. The takeaway: you may already be using non-traditional trademarks without realizing it.
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Understanding Trademark Ownership: Who is the Proper Owner for Your Trademark Application?
Properly identifying the owner of a trademark is paramount when filing a trademark application. The owner is the individual or company that controls the nature and quality of the goods or services associated with the brand. Failing to accurately designate the owner can lead to a range of complications, including application rejections, void registrations, and limited enforcement rights
Starting a new business venture is an exciting time filled with endless possibilities. As an entrepreneur, you invest time, effort, and creativity into developing your brand identity. One essential aspect of protecting your brand is securing a trademark registration. But here's a question that often confuses many: who should be listed as the owner of your trademark application? Should it be you as an individual or your business entity? In this blog post, we'll guide you through the process of understanding trademark ownership and help you determine who you should name as the owner of your trademark when it's time to fill out your trademark application. So, let's dive in!
Understanding Trademark Ownership
Trademark ownership is not solely about having the legal rights to use a particular symbol, word, or design. It also encompasses the responsibility of maintaining and preserving the reputation and goodwill associated with the brand. This includes ensuring that the goods or services offered under the trademark consistently meet a certain level of quality and adhere to the brand's standards.
When it comes to controlling the nature and quality of goods and services, a trademark owner has a vital role to play. This control ensures that consumers associate the trademark with a consistent level of quality, reliability, and satisfaction. By maintaining control over the nature and quality, a trademark owner can protect the reputation and distinctiveness of their brand in the marketplace.
An important exception to the ownership rule applies to intent-to-use (ITU) applications. With an ITU application, you can reserve rights to a mark you intend to use in the future. While you are not yet the actual owner at the time of filing, the intent to use the mark is a prerequisite for obtaining registration. However, it is crucial to ensure that the listed owner has a bona fide intent to use the mark and has a reasonable basis for making such a claim. While an ITU application cannot be voided
It's worth noting that even with an ITU application, the actual owner must be determined before the mark registers. Failure to do so may result in complications, including potential cancellation of the registration or challenges in enforcing the mark.
Determining the Proper Owner of a Trademark
When it comes to trademark ownership, the key factor is the entity or individual who controls the nature and quality of the goods or services associated with the brand. This ownership extends beyond mere legal ownership to the party responsible for the development, manufacturing, marketing, and overall reputation of the brand. Identifying the correct owner is crucial to avoid potential delays, fees, cancellations, and enforceability issues.
Determining when it is appropriate to file a trademark application under an individual's name versus a business entity depends on various factors, including the structure of your business and your long-term goals.
Let's explore a few common scenarios:
When to File Under an Individual's Name:
Sole Proprietorship or Freelancing:
If you're running your business as a sole proprietorship or working as a freelancer, it's common practice to file the trademark application under your individual name. As the sole proprietor, you maintain full control over the nature and quality of the goods and services associated with your brand. This ownership structure is suitable for small businesses, freelancers, or independent consultants who operate without a separate legal entity.
Personal Identity Tied to the Brand:
If your business heavily relies on your personal identity, expertise, or reputation, it may be appropriate to file the trademark application under your name. This is particularly relevant if you anticipate potential separation from the business or rebranding in the future.
Filing an Intent-to-Use application:
If you are preparing to launch a new business and want to reserve your trademark early on, but have not yet decided on what type of business entity is right for you, filing your ITU application under your individual name may be appropriate. It is important to note however, that you cannot assign an ITU application to a new owner. This may create problems down the road when you have to show proof of use or if someone challenges your bonafide intent to use the mark.
When to File Under a Business Entity:
Operating as a Corporation or LLC:
When your business operates as a separate legal entity, such as a corporation or limited liability company (LLC), it is typically advisable to file the trademark application under the business entity's name. In this scenario, the entity itself has control over the goods and services associated with the mark. This is because the law treats business entities as their own individual person, so ultimately it will be the business that is providing the goods or services, not you individually. This ownership structure provides added protection and flexibility, especially in cases where multiple individuals are involved in managing the business and ensures continuity even if there are changes in personnel.
Filing an Intent-to-Use application:
If you’ve already formed a business entity for your new endeavor, it is advisable to name the owner of the trademark as the business.
Future Growth and Expansion:
If you have ambitious plans for your business, such as scaling operations, attracting investors, or even considering a potential sale in the future, filing the trademark application under the business entity is often recommended. This aligns your trademark strategy with your long-term goals, facilitating a smoother transition as your business evolves.
Why Getting It Right Matters
Avoiding Unnecessary Delays and Fees:
By accurately identifying the trademark owner, you can prevent unnecessary delays and fees in the application process. Importantly, an application cannot be amended to name a different person or entity as the correct application. Any discrepancies or inconsistencies regarding the owner's identity can trigger additional correspondence with the United States Patent and Trademark Office (USPTO) and potentially even resubmission of the application, resulting in delays and increased costs at best.
Preventing Application Voidance:
Lack of ownership: If the USPTO finds the application was filed under the wrong owner, the application may be voided, requiring resubmission under the proper owner. This could be a costly mistake for brands resulting in a narrowing or complete loss of trademark rights. Trademark rights are often determined based on the principle of priority, which means that the first person or entity to use a mark in commerce or file a valid application is granted certain rights. If a trademark application is voided, the applicant may lose their priority status. This can allow others who file valid applications or use the mark in commerce to gain superior rights, potentially leading to conflicts and challenges in asserting ownership over the mark.
Lack of Genuine Intent: While a ITU application cannot be voided for listing the wrong owner, it can be challenged for lack of genuine intent. Filing an ITU application requires a bona fide intent to use the mark in commerce. If the wrong owner is listed, it may call into question the genuine intent of the listed owner to use the mark. This can lead to challenges during the examination process, as the USPTO may question whether the listed owner has a legitimate intention to use the mark. Like a voided application, challenges to intent can result in unnecessary expenses, time and most importantly, a loss in trademark rights. This is an even more severe outcome for ITU applicants, who have filed before actual use, because they have no residual common law trademark rights to rely on.
Incomplete Assignment of Rights:
If the wrong owner is listed, it may result in an incomplete assignment of rights. This means that the true owner of the mark may not have the legal rights necessary to enforce and protect the mark against infringers. This can weaken the overall protection of the trademark.
Ensuring Enforceability and Validity of Trademark:
If the wrong owner is listed, the true owner may face challenges when enforcing their trademark rights against infringers. They may encounter difficulties in initiating legal actions, sending cease-and-desist letters, or pursuing damages for trademark infringement. Additionally, If the wrong owner is listed on the trademark application, it may give rise to a petition to cancel filed by a third party asserting that the listed owner does not have the proper standing or ownership rights. This can result in legal proceedings to determine the rightful owner of the mark, leading to significant costs, time, and uncertainty. If a petition to cancel is successful, the registration of the trademark may be deemed invalid. This means that the mark may lose its legal protection, and the listed owner may lose the exclusive rights associated with the mark. It can have severe consequences for the brand, including the loss of market recognition and the ability to prevent others from using a similar mark. This can hamper the ability to protect the brand and maintain its distinctiveness in the marketplace. In some instances, the brand may be required to undergo a rebranding process, which can be costly and time-consuming and significantly impact the company’s market share.
Avoiding Ownership Disputes:
Listing the wrong owner can lead to ownership disputes between individuals or entities claiming ownership rights. This can result in costly and time-consuming legal proceedings to determine the rightful owner of the mark. Ownership disputes can cause significant disruptions to business operations and damage the brand's reputation.
Ensuring Proper Trademark Portfolio Management Issues:
Incorrectly listing the owner can create complications when managing a trademark portfolio. This includes tasks such as renewals, recordation of changes, and portfolio audits. It can lead to confusion, inaccurate records, and difficulties in maintaining an organized and updated portfolio.
License and Assignment Limitations:
If the listed owner is not the true owner, any licenses or assignments related to the mark may be deemed invalid or unenforceable. This can create challenges when entering into licensing agreements, franchising arrangements, or transferring ownership of the mark to another party. It may require additional legal steps and potential renegotiations to rectify the situation.
Final Thoughts
Understanding the importance of proper trademark ownership is key to a successful trademark registration process. By correctly identifying the owner on the application, you can avoid unnecessary delays, fees, and potential complications. Whether you are an individual entrepreneur or operating under a company structure, ensure that the proper owner is listed to protect your rights, maintain brand integrity, and lay a solid foundation for your business's success.
Remember, when in doubt, it's always wise to seek legal guidance from a qualified intellectual property attorney who can provide personalized advice based on your specific circumstances. If you have any questions or need guidance regarding trademark ownership or the application process, we offer a free consultation to help you get started.
Good luck with your trademark application and the exciting journey ahead!
TL;DR:
When filing a trademark application, it's important to determine the proper owner. The owner is responsible for maintaining the reputation and quality associated with the brand. If you're a sole proprietor or freelancer, it's common to file under your individual name. If your business is a separate legal entity like a corporation or LLC, file under the entity's name for added protection. Filing an intent-to-use application requires a bonafide intent to use the mark. Choosing the wrong owner can lead to delays, fees, voidance of the application, challenges to intent, incomplete rights assignment, and difficulties enforcing the mark. If you have questions about trademark ownership, contact us today for a free consultation.
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First Use is written by Randi Leath, a trademark and intellectual property attorney who advises businesses, entrepreneurs, and creatives on on building, protecting, and using their brands.
Her practice focuses on trademarks, licensing, enforcement, and brand strategy, with an emphasis on providing practical, business-minded guidance tailored to each client’s goals.