On your marks, get set, trademark!

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This week, the fastest man in history requested that his winning stance be approved as a trademark. Eight-time Olympic gold medalist Usain Bolt has filed an application with the United States Patent and Trademark Office (USPTO) to register a trademark depicting the silhouette of a man displaying his distinctive pose of standing lean back and point to the sky. He intends to use the image as a logo on a range of products, including clothing, sunglasses, jewelry and bags, as well as in restaurants and retail stores.

What forms of branding can be protected by trademarks?

Trademarks are traditionally associated with logos or names, with famous brands such as McDonald’s, Starbucks, Audi and Gucci all renowned for their signature marks. In recent decades, celebrities have also increasingly used trademarks as a means of protecting their wares. In fact, recently, Kim Kardashian even applied to register her children’s names as trademarks to protect any future business ventures they might wish to pursue. However, Usain Bolt’s decision to protect his famous pose is a reminder that trademark protection does not just apply to names and logos and can in fact help protect a range of brand features.

Although distinctive words or logos are often used to identify companies or products, a person or business may have other distinct characteristics that resonate with consumers and therefore warrant legal protection. For example, The Hershey Company successfully filed for trademark registration for the unique shade of orange used on the packaging of Reese’s Peanut Butter Jars. In fact, there are a host of other forms of branding that can make a product or service unique – for example, sounds, textures or even smells, as well as the shape of the product’s packaging.

In the United Kingdom and the United States, fragrance, taste and sound marks are generally referred to as “non-traditional marks” and, although not granted as easily as traditional trademarks for logos or words , they are often still approved. For example, in 2018 the USPTO registered a trademark for the fragrance of Play-Doh and the characteristic clicking sound of all Zippo lighters is also protected.

These components may seem like less obvious forms of intellectual property, but they are often the features of the products that resonate the most with consumers and, therefore, have considerable commercial value. For this reason, it is essential that organizations adopt an all-encompassing brand protection strategy that extends to all aspects of their business. Heineken is a great example of a brand that has taken this approach. The company has established an extensive portfolio of trademarks intended to protect all aspects of its business, including the brand name and names of various by-products such as Heineken 0.0, as well as the bottle design, including the recognized shape and color. combination.

However, it is important to bear in mind that the protection of smells, sounds and tastes can be tricky because the inherent nature of these characteristics makes it more difficult to prove their distinctiveness, which is a necessary condition for any claim. brand. The well-known brand, Red Bull, tried to register the combination of its iconic colors, blue and silver, used on its famous energy drinks. The European Court of Justice ruled in this case that the mere fact of providing the ratio of the two colors used still allowed the arrangement of colors in many different combinations and, therefore, it was not precise enough to constitute a trade mark. recorded.

How to go for the gold – don’t leave anything behind!

Athletes such as Usain Bolt and well-known retail and food and beverage organizations are investing heavily in building and promoting their brand around the world. For this reason, it is important for brands to consider all elements of their products and services to identify unique aspects that may benefit from IP protection, even though it may be more difficult to register. these components as trademarks. To ensure that nothing is left to chance, brands should explore the full range of protection options available to them and seek legal advice to implement a robust and fully inclusive.

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