When most people think of trade marks, they picture a logo, a business name, or a slogan. But trade marks are not confined to just words or symbols anymore. Under Australian law, almost anything that can distinguish one trader’s goods or services from another’s, i.e. whether it’s the shape of a bottle, the jingle in an ad, or even a specific scent, can potentially be registered as a trade mark. These are known as non-traditional signs.
What counts as a non-traditional trade mark?
Under section 17 of the Trade Marks Act 1995 (Cth), a trade mark is defined as a sign used (or intended to be used) to distinguish goods or services in the course of trade. That’s a broad definition and section 6 takes it even further by clarifying that a “sign” includes:
- Letters, words, names, signatures, numerals
- Devices, brands, labels, tickets, packaging aspects
- Shape, color, sound, and scent
This is a clear step away from the old limitations. The 1995 Act was designed to open the doors to more creative brand identifiers, what we now call non-traditional signs. Today, we even see attempts to register gestures, textures, tastes, and holograms.
Thus, the law doesn’t close off what can be registered, i.e. it’s more about whether your sign can distinguish your goods or services. And that’s where things get tricky.
Types of non-traditional signs
Some of the most common (and most contested) non-traditional trade marks include the following-
Shape Marks
Think of Toblerone’s triangular chocolate or Coca-Cola’s contoured bottle. These are classic examples of shape marks. But not every shape can be registered. If your product’s shape is purely functional or standard in the industry, it probably won’t make the cut.
To register a shape, your application must include a visual representation, and a clear description of what shape is being claimed as the mark. The description must match the image and should indicate that the shape, in and of itself, is what distinguishes your goods.
Color Marks
Cadbury’s purple or Tiffany’s blue? These are iconic color marks, but they weren’t easy to register.
To register a color, you’ll need to show that the color (or color combination) has become distinctive in relation to your goods or services. Again, a clear description and supporting evidence are key. Simply liking a color or using it once on packaging won’t be enough.
Sound Marks
That three-note Intel jingle? That’s a registered sound mark.
If you’ve created a unique sound, like a musical phrase, chime, or jingle, you can register it. Your application must include an audio recording and a written description that explains the sound in precise terms.
Scent Marks
These are rare but not impossible. The most famous scent mark is in the US, i.e. a floral scent for sewing thread.
In Australia, a scent may be registrable if it’s-
- Not functional (i.e. doesn’t serve a masking purpose)
- Unique to your brand in your industry
- Capable of clear representation and description
However, describing a scent in universally understood language is a major hurdle. This is one area where our team can help craft the description and evidence in a way that gives your application a fighting chance.
Texture and Taste Marks
These are even more unusual and difficult to register.
A texture (e.g. flocked or velvet labels) might qualify, provided it isn’t a feature commonly used in your field. Taste marks, however, face more fundamental problems: most goods aren’t tasted before purchase, and flavor often serves a functional role.
While Australia hasn’t yet seen many successful registrations in this category, international examples (like a “flocked” label on a glass bottle in the US) show it’s not out of the question.
Special Categories, i.e. Holograms, Movements, and Gestures
Technological advancement has led to more inventive branding tactics. We now see applications for-
- Moving images (e.g. animated brand logos)
- Holograms (that shift when viewed from different angles)
- Gestures (such as a hand movement unique to service delivery)
To register these, an applicant must provide-
- Clear pictorial representations or video clips
- A precise description that covers all elements and removes ambiguity
Vague phrases like “as exemplified in” or “such as” are not accepted. Precision matters.
Representing non-traditional trade marks
Under section 40 of the Act, all trade marks must be represented graphically. For traditional signs, this is straightforward, i.e. a logo or word can be typed or drawn. But non-traditional signs require more care.
Each application must include-
- A visual or audio representation, where applicable
- A concise, accurate description, which becomes an endorsement on the registration
These two elements together define the trade mark. If they don’t match or leave room for confusion, the application will face delays or objections.
We help clients by drafting strong, consistent descriptions and representations, using language that IP Australia recognizes as acceptable.
Can you amend a description later?
Yes, but only within limits.
Once filed, the description becomes part of the identity of the mark. If you propose to amend the description in a way that changes what the trade mark actually is, the Registrar is unlikely to allow it.
For example, if your original description refers to a color mark and you later want to include words or logos that were in the image, that’s probably outside the original scope. On the other hand, if the application already included all those elements, you may be able to amend the description to clarify the combination.
Any change must not materially alter the nature of the trade mark. That’s why getting it right at the outset is so important.
What about composite marks?
Many modern brands combine elements, i.e. shapes, colors, words, packaging designs, into a single trade mark. These are known as composite marks.
The good news? Composite marks are often easier to register than the individual elements. The combination of a unique bottle shape and a color scheme and a stylized logo may create enough distinctiveness even if each part wouldn’t succeed on its own.
However, you still need to describe the trade mark as a whole and clearly indicate that the mark includes multiple elements. We often see applications fail simply because they don’t make that combination clear.
Why should one use a non-traditional mark?
Non-traditional signs are often a core element of a brand’s identity. Think of how scent, sound, shape, and packaging influence how consumers experience products.
But these signs also come with added complexity in registration. The challenge lies in-
- Proving distinctiveness
- Describing the mark in precise, enforceable terms
- Avoiding functionality objections
- Navigating evolving interpretations of what qualifies as a “sign”
That’s where our team comes in. We’ve worked with start-ups experimenting with bold branding, as well as established brands refining their visual identity. From concept to registration, we help ensure that your non-traditional trade marks are protected properly, i.e. without unexpected objections down the track.
Need Help with a Non-Traditional Trade Mark?
Whether it’s a scent, a shape, or a full sensory experience, if your brand uses something different to stand out, it’s worth protecting. Let’s make sure your trade mark application captures the full strength of what makes your product or service unique.
Get in touch with us and we’ll guide you through every step, i.e. from crafting the right descriptions to preparing the best evidence for registration.
Contact us to learn more about how LexGeneris can assist you with all your intellectual property needs. You can also schedule a no-cost consultation with our team of expert IP Attorneys Australia, IP Attorneys India, and IP Attorneys New Zealand.
