Time for a Sensory Trademark Audit?

In "Cinnamon Buns, Marching Ducks and Cherry-Scented Racecar Exhaust: Protecting Nontraditional Trademarks" (INTA Members only), Jerome Gilson and Anne Gilson LaLonde discuss the protection of colors, sounds, smells and other "sensory" trademarks. In a nod to the work of branding guru Martin Lindstrom, the authors likewise urge brand owners to conduct a sensory trademark audit:

As a means of strengthening their intellectual property rights and enlarging their trademark portfolios, businesses would do well to scour their products, services and advertising and marketing programs for nontraditional marks to be registered. They might also follow the Lindstrom admonition and encourage their marketing teams to explore the cutting edge world of multisensory branding. And even though few at present use scent, flavor or color alone as marketing tools, they often use musical themes or jingles in advertising. Why not register?

Nontraditional marks can stir the imagination, and many (like marching ducks, duck calls and scented exhaust fumes) are just plain funny. If consumers in fact see these as trademarks they are registrable and protectable, although future courts and the Trademark Trial and Appeal Board will have to agree. Such marks can be or can become strong, memorable and long-lasting. Moreover, the difficulties of proving that consumers do not view them simply as unusual product features or as marketing gimmicks may be overcome as the public becomes more trademark-educated over time.

Click here for a (less-ambitious) "Low-Cost, Trademark Portfolio Management Policy."

Click here for examples of sensory trademark registrations, courtesy of the PHOSITA Blog.