When you hear the word "trademark," the first thing that comes to mind is probably a name or a logo. Trademark law, however, covers a far wider territory: a shade of colour, a start-up jingle, the shape of a bottle, or an on-screen animation can all be trademarks. These are known as non-traditional trademarks. In this article we look at which ones can be registered, what requirements apply, and why these applications rank among the most challenging files in trademark practice.
What Are the Boundaries of What Can Be a Trademark?
Turkey's Industrial Property Law does not provide a closed list of signs that can be trademarks. It requires two fundamental conditions:
- Distinctiveness: The sign must be capable of distinguishing one undertaking's goods or services from those of others.
- Representability in the register: The sign must be capable of being represented in the register in a way that allows the subject matter of protection to be understood clearly and precisely.
The second condition is the real gatekeeper for non-traditional trademarks. Writing down a name is easy; representing a scent precisely in the register is, in practice, not possible.
Colour Trademarks
Registering a single colour
Registering a single colour as a trademark on its own is possible, but extremely difficult. The reason lies in the limited supply of colours and the public interest involved: allocating a colour to a single business within a sector significantly restricts competitors.
For this reason, single-colour applications almost invariably require distinctiveness acquired through use — meaning you must prove that the colour has come to be identified with a specific business in that sector, in the minds of consumers.
Specifying the colour in the application using an international colour-coding system (Pantone, for example) makes the boundaries of protection clear. Saying "blue" is not enough — exactly which blue must be specified.
Colour combinations
Two or more colours combined in a specific arrangement are easier to register than a single colour. Even here, though, the combination must be presented in a systematic, predetermined arrangement. A vague claim such as "red and white in any arrangement" is not accepted.
Sound Trademarks
A melody, jingle or characteristic sound effect can be registered as a trademark. The most common examples in practice are start-up chimes, advertising jingles and device power-on sounds.
Points to watch in the application:
- The sound must be presented in a way that is clearly and precisely identifiable in the register. An audio recording, and musical notation where needed, is used.
- A verbal description such as "a dog barking" is not considered sufficient for representation — precision is required.
- Ordinary, common sounds are not found distinctive. A doorbell sound or the sound of applause cannot, on their own, be a trademark.
- Sounds resulting from the nature of the product itself (an engine noise, for example) cannot be registered.
Sound trademarks are becoming increasingly strategic as audio channels such as voice assistants and podcast advertising grow. We covered the impact of digital transformation on trademark protection in our article Trademark Protection in the Age of AI.
Motion and Multimedia Trademarks
A motion mark protects an animation or visual movement. Logo animations shown when an app opens are the most common example.
A multimedia mark covers image and sound together. For this type of application, the file is submitted as a video recording showing the full movement and sound.
The distinctiveness question asked is the same one: does this movement indicate a source to the consumer, or is it merely a decorative effect?
Three-Dimensional Shape Trademarks
The shape of a product or its packaging can be registered as a trademark. Classic examples include a distinctive bottle form, an original chocolate shape, or a distinctive perfume box.
The law places three important obstacles in the way here, however. A shape cannot be registered as a trademark where it:
- Results from the nature of the product itself: A ball being round, for example.
- Is necessary to obtain a technical result: Forms dictated by function. Shapes like these belong to patent or utility-model protection, not trademark protection.
- Gives the product its substantial value: Cases where consumers buy the product purely for that aesthetic form. This area belongs to design registration.
These three obstacles exist because trademark protection can be renewed indefinitely: they prevent shapes belonging to patent and design protection — both of which are time-limited by design — from being made perpetual through trademark law instead. We compared these different rights in our article Trademark or Patent?
Position and Pattern Trademarks
A position mark protects a sign's specific placement on a product — for example, a stripe on a particular part of a shoe, or a stitching pattern at a specific point on a pocket.
A pattern (motif) mark protects a repeating surface pattern. It is common in textiles, packaging and leather goods.
In both cases, the application must clearly show, visually, which element the protection covers; the parts that are not protected are usually indicated with a dashed line.
Scent, Taste and Touch Trademarks
In theory, a scent can also distinguish an undertaking's products. In practice, though, these applications get stuck on the representability requirement: there is no universally accepted method for representing a scent in the register clearly and precisely. Providing a chemical formula describes the composition, not the scent itself, while a verbal description falls short of the required precision.
The same problem applies to taste marks. In food products, taste is also often treated as a characteristic arising from the nature of the product itself, which creates a separate obstacle.
Touch (texture) marks are somewhat more flexible: the characteristic surface texture of a packaging can be considered for registration when submitted together with a visual and descriptive representation. Even so, this area remains exceptional.
How Is the Sign Represented in the Application?
For non-traditional trademarks, the technical part of the application matters far more than it does for word marks. In summary:
| Type of mark | Form of representation | Critical point |
|---|---|---|
| Colour | Visual sample + international colour code | Without a code, the boundary of protection stays unclear |
| Sound | Audio recording, musical notation if needed | A verbal description is not sufficient |
| Motion | Video recording or sequential images | The entire movement must be understandable |
| Three-dimensional shape | Views from different angles | A single angle does not fully define the shape |
| Position | Visual + unprotected parts shown with a dashed line | The protected element must be clearly separated |
A shortcoming in the representation can cause the application to be refused before it is even examined on the merits. We covered the technical filing workflow in our article EPATS Guide.
Proving Distinctiveness
For nearly all non-traditional trademarks, you are expected to prove distinctiveness acquired through use. Your evidence file should include:
- How long the sign has been used, and its geographic reach
- Advertising and promotional investment
- Market share and sales data
- Consumer perception surveys — in particular, answers to a question along the lines of "which brand do you think of when you see/hear this colour/sound?"
- Independent press coverage that mentions the sign together with the brand
Preparing a file like this takes many times more effort than a conventional word-mark application.
When Does This Make Strategic Sense?
Registering a non-traditional trademark is not necessary for every business. It becomes worthwhile when:
- Your packaging shape or colour is the main element by which consumers recognise you on the shelf
- Competitors have started copying your visual identity
- Your product competes in a category with intense shelf or window-display competition
- Sound or animation sits at the heart of your digital product's brand identity
If none of these apply, your priority should be extending the class coverage of your word and logo marks instead. Registering a non-traditional trademark does not replace core protection — it is a layer added on top of it. Registering the shape of your packaging while your word mark is left unprotected is like locking the window while leaving the front door open.
Can You Still Be Protected If Registration Fails?
If a colour, sound or shape cannot be registered as a trademark, you are not left entirely defenceless. The tools still available to you include:
- Unfair competition provisions: A competitor copying your visual identity in a way likely to mislead consumers can constitute unfair competition.
- Design registration: For packaging and product form, this is often a more suitable and more easily obtained route than a trademark.
- Copyright: Original graphic compositions, animations and music can be protected as works.
This is why, when a non-traditional trademark application is refused, the question to ask is not "have we lost?" but "which other right can protect this element?"
Build the Right Combination of Protection
Strong brands do not rely on a single registration. Word mark, logo mark, and where relevant slogan, packaging design and distinctive visual elements are all protected together. This layered structure means a copycat runs into a right at every turn.
At Webx, we assess your brand's visual and audio identity as a whole and report which elements should be protected under which right. Explore our trademark registration service or get in touch with us.