The concept of branding has evolved in the modern world to encompass more than just a company’s name or logo. It entails adding a unique touch and leaving a lasting impression on consumers so that the brand will stick in their minds, stand out from competitors, and be remembered. Fragrance, texture, sound, shape, and other aspects all have a significant influence on how a brand stands out from others and how consumers recognize and trust it.
A trademark is a type of intellectual property that mainly safeguards a business’s identity by protecting elements like the brand name, logo, or symbols. These three have historically been covered by trademark law, but in practice, this protection encompasses a broader concept that may also include sound, texture, smell, etc. Along with traditional trademarks, these non-traditional marks are well recognized.
Under Australian law, a trademark is defined broadly to include any “sign” capable of distinguishing goods or services. This wide definition allows for the registration of non-traditional marks, provided they meet the essential requirements of distinctiveness and clear representation. Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark in broad terms and expressly includes shapes, colours, sounds, and scents within its scope. Importantly, this definition is not exhaustive. As a result, it also accommodates less conventional forms of marks, such as movement marks, holograms, tastes, and textures, which are collectively referred to as non-traditional trade marks.
Such non- traditional trademarks allow a business to engage in extensive brand building to create a brand feeling and make their brand unique and differentiable. It helps one create a relation with customers, to provide a more personalised effect, and also safeguard such branding effort through intellectual property like a trademark.
Forms of Non-Traditional Trademarks
A non-traditional trademark encompasses a variety of elements, such as shape, color, sound, scent, taste, texture, movement, etc.
Shape trademark
This mainly relates to the product’s or its packaging’s shape. Such a shape must to be unique and clearly able to set one product apart from another. It should be shown to be unique and carries the same level of proof as a standard trademark. For instance, in Australia, the shapes of Toblerone chocolate and Coca-Cola bottles are both copyrighted and protected from unauthorized usage. Toblerone’s triangle chocolate shape can be recognized as belonging to the brand, just as the Coca-Cola bottle can clearly be distinguished from another soda brand.
Colour Trademark
The protection afforded to a product’s colour, packaging, or colour combination used to package it is referred to as a colour trademark. This has a sense of uniqueness that makes it easy to distinguish once it is viewed. This must also be proven in the same manner as a conventional trademark. For instance, Cadbury’s well-known purple colour makes it easy to tell it apart from other chocolates.
Sound Trademark
A distinctive sound, such as a jingle, voice, or mechanical sound, that is connected to the brand image and aids in identifying the product is protected by a sound trademark in Australia. It needs a graphical representation, a clear description, and an audio track. Intel’s chime is a well-known example. The brand that the mark represents should be able to be identified and described.
Scent Trademark
Compared to other trademarks, getting a smell trademark is more challenging. It safeguards the product’s or brand’s aroma so that it may be quickly recognized and differentiated from other brands. The fragrance must be very distinctive and non-functional for the product, and it must have a clear textual description. As of right now, only two products are known to have a scent: “the smell of cinnamon” for non-wood furniture and “Eucalyptus Radiata scent” for golf tees.
Taste Trademark
It is quite challenging to register a taste as a trademark in Australia because tastes are typically perceived as functional (e.g., flavoring medication) or only experienced after purchase, making them difficult to use as unique source identifiers. It requires a very specific verbal description of the taste and how it functions as a mark, and there are currently no registered taste trademarks in Australia, though they are theoretically possible if distinct.
Texture Trademark
Additionally, proving a texture trademark is comparatively challenging and necessitates a detailed description and pictorial representation that is more than just functional. It must be unique enough to allow the brand to be recognized by its texture. Australia adheres to comparable regulations as the United States, which has a registered flocked texture mark for bottle labels.
Movement Trademark
In Australia, a movement trademark, which requires a video file and a detailed explanation in the application, protects a motion or series of movements (such as a brief movie or animation) used to identify a brand. Toyota’s leaping silhouette and Snooze’s blinking “OO” are well-known examples of how companies can trademark distinctive brand animations, preventing rivals from using identical moving logos to mislead customers.
Current situation
There have recently been many applications for non-traditional trademarks in Australia, however they are uncommon for things like fragrance, texture, etc. According to a survey, most non-traditional trade mark applications in Australia are made up of shape and colour marks. However, as previously mentioned, the success rate for registering these marks is somewhat low, mostly because of the need to demonstrate distinctiveness. It can be challenging to prove distinctiveness for such non-traditional trademarks because it requires comprehensive proof of features like texture, smell, and other characteristics that are typically present as well.
Future of Non-Traditional Trademarks
As branding continues to move beyond traditional visual identifiers, non-traditional trademarks are likely to play an increasingly important role in the years to come. Businesses today focus heavily on creating experiences rather than just selling products, and these experiences often rely on sensory cues such as sound, movement, texture, and even scent. As a result, brand recognition is no longer limited to what consumers see, but also to what they hear, feel, or associate emotionally with a product or service.
With the rise of digital platforms, mobile applications, and online marketplaces, elements like sound marks and motion marks are becoming more relevant than ever. Short animations, loading sounds, and distinctive audio cues are now central to how consumers interact with brands, particularly in digital and technology-driven industries. This shift is likely to encourage more applications for sound and movement trademarks, especially as businesses look for ways to protect these assets from imitation.
That said, while the number of applications may increase, the legal threshold for registration is unlikely to be relaxed. Australian authorities continue to place strong emphasis on distinctiveness and non-functionality. This means that although non-traditional trademarks represent exciting branding opportunities, only those marks that genuinely function as indicators of origin, and not merely as decorative or functional features, will receive protection.
In the future, we may also see greater engagement with emerging branding spaces such as virtual environments and digital branding, where movement, sound, and visual sequences form the core of brand identity. This evolving landscape will further test how trademark law adapts to modern branding practices while maintaining the integrity of the trade mark register.
Conclusion
Non-traditional trademarks reflect the reality of modern branding, where consumer recognition is shaped by more than just names and logos. In Australia, the legal framework allows for the protection of such marks, provided they meet the strict requirements of distinctiveness and clear representation. While registering non-traditional trademarks can be challenging, they offer significant value to businesses that successfully use them to build strong and memorable brand identities.
As branding strategies continue to evolve, non-traditional trademarks are likely to gain greater prominence. However, businesses must approach these marks carefully, with a clear strategy, documented use, and an understanding of the legal hurdles involved. When used effectively, non-traditional trademarks can serve as powerful tools for differentiation, consumer engagement, and long-term brand protection.
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