Milka Koe

Smells, colours & flavours as a trademark

Brand registrations

Traditionally, trademarks consist of word elements and/or graphical elements. But did you know that it is actually possible to register many different types of trademarks?

Commercial signs as a brand

In EU trademark law, a very liberal approach is used regarding which signs can be registered as a trademark. This makes it possible to register various types of signs other than words or images, such as smells, tastes, sounds, movements, and even colours. In fact, any type of sign which is capable of distinguishing the commercial origin of goods or services could in principle be registered as a trademark.

A lack of objectivity

In practice, however, these new types of trademarks can be quite difficult to register. Smells and tastes for example have not yet been subject to a trademark registration in the EU. This is because it is currently impossible to describe a smell or taste in an objective and accurate manner.

Due to the subjective character of smells and tastes, it is not sufficient to file a description or a chemical notation. For colours, an internationally recognized colour code can be used, but there is still the problem that consumers generally do not perceive colours as indicating a commercial origin. As a result, the applicant must often prove acquired distinctiveness when filing a colour trademark, which is usually only possible for trademarks with a high reputation. Think, for example, of Milka's typical lilac colour.

Jingles & storyboards

On the other hand, some new types of trademarks can be registered quite easily. For instance, tunes can be registered by submitting an audio file or a musical notation. Movements can also be registered by submitting a video file or a sequence of still images.

Some examples of new types of trademarks which were registered successfully include the famous Nokia tune, the iconic yellow of Zwitsal and Deutsche Telekom’s magenta. Curious if your new type of trademark is registerable? Contact us for additional information.

Nokia Tune Zwitsal Telekom