I just attended IPO where one of the topics included General Mills trademark application for the color yellow for their Cheerios Box. This is a reminder that trademarks can be anything that acts as a source identifier.
While words and logos are the most prevalent trademarks, trademark protection extends to sounds, product shapes, colors, smells, and even flavors.
Protecting a specific color, sound or flavor is more difficult than an arbitrary word or logo. Trademark offices only register such trademarks with proof that the consuming public will recognize the color, shape, sound etc as a source identifier. In other words, when confronted with the yellow Cheerios box, does the consumer connect the color yellow with General Mills as the source?
To demonstrate this connection, the office considers how long the trademark has been used, whether the use was substantially exclusive and if the owner used “look for” advertising. Success requires consistent and intentional use over a period of years. Beneficially, the trademark office offers a supplemental registration while developing this use. With that in mind, consider whether there are non-traditional marks for your business.
Often a key component in registering non-traditional trademarks including colors, sounds, smells and flavors is drawing attention to the fact that these are being used to identify the source of a particular product. For example, "look for" advertising is a great way to draw attention to visual marks such as colors or shapes. Similar types of cues in advertising can be used to identify smells or flavors as source identifiers. Anything that you can do to strengthen the connection between a non-traditional mark and the consumer's ability to identify you as the source will assist you in getting a trademark registration. As with traditional marks, consistent use as a trademark also plays a large factor. Finally, the exclusivity of use seemed to be a key factor in General Mills case, and therefore, you should be vigilant of competing uses.