The trademark sector is changing before our eyes. For decades, brands have based their branding strategies on one or two senses only – what consumers see and, at a later stage, what they hear. However, as the competition grows rapidly and markets are saturated with more of the same, traditional branding is no longer enough. In this modern competitive age, brand owners must find new ways to create strong, unique brands that will make an impression on consumers over time and help their brand to stand out from other brands. In the past few decades, we have witnessed a worldwide phenomenon of switching from visual trademarks to marks that incorporate other senses, such as holograms, flavours, 3D shapes, movements, sounds, smells and colours, among others. These are all referred to as ‘non-conventional trademarks’ in the legal world. Such signs create more points of reference with consumers, thereby strengthening their relationship with the brand.
Businesses are aware of the importance of a good trademark. A recognisable mark can help a consumer choose a particular product or service from a series of similar products and services. When given the choice between similar products, undecided consumers are most likely to choose the product that they are familiar with, consciously or unconsciously. Trademarks are therefore registered and used around the world regularly with the existing trademark law of each country. However, the new phenomenon of applying for non-conventional trademarks has challenged the old legal system with regard to trademarks. Most national trademark legislation defines the term ‘trademark’ relatively broadly, in a way that allows flexibility in the changing world of branding and trademarks. In recent years, non-conventional trademarks have become more widely accepted as a result of legislative changes expanding the definition of the term ‘trademark’. Some of these changes are the result of international IP treaties such as the Agreement on Trade-Related Aspects of Intellectual Property Rights).
The Israeli Trademark Ordinance defines ‘trademark’ as "a mark used or intended to be used by a person for the purpose of the goods they manufacture or trade". It recognises the option of registering “other signals” as trademarks. Some argue that the proper interpretation of the term ‘other signals’ is comparable to the term ‘device’ used in the US Trademark Law. That is, other signals are visual graphics that are not made by using letters. This means that trademark protection can be granted to marks that can be displayed in a visual tangible manner only. In the last few years, the Israeli Trademark Office has interpreted this definition widely, granting protection to many non-conventional trademarks (eg, 3D shapes and sounds). Israeli courts have also granted protection to colours. In other jurisdictions such as the United States and the European Union, smells and movement marks have also been granted protection.
One of the most prominent reasons for protecting non-conventional trademarks is the rapid development of technology and brand owners trying to transform some of the experiences that consumers have in a physical bricks-and-mortar store to the online world. For example, imagine ordering groceries online and experiencing the smell of the produce and freshly baked goods, just as you would when visiting the store. Scientists have already developed prototypes for digital scent technology. This is why non-conventional trademarks are slowly gaining protection from trademark and patent offices around the world.
In the wake of the development of technology in the marketing world, non-conventional trademarks are the future. Experts say that patent and trademark offices in Israel and worldwide will receive more and more applications for non-conventional trademark registration. Israel is at the forefront of innovation and technology development and is therefore expected to lead the way both in developing technology to enable non-conventional trademarks and developing new innovative legislative systems to extend protection to even more non-conventional trademarks that may appear in the future of branding and marketing.