This week, we look at non-traditional trade marks – shapes, colours, sounds, smells and slogans – and why protecting these unconventional brand identifiers remains one of the most demanding areas of trade mark practice.

Introduction

When most people think of a trade mark, they picture a brand name or a logo. But trade marks can also cover far less obvious things, such as the shape of a bottle, a particular shade or combination of colours, a slogan, a sound, a short video clip, or even, in rare cases, a smell. These are known as "non-traditional" trade marks, and they can be incredibly valuable brand assets. The trouble is, registering them is significantly more difficult than registering a word or logo mark. As illustrated by cases such as Henkel KGaA v OHIM (Case C-218/01), courts and trade mark offices have consistently set a high bar for these types of marks, and businesses looking to protect non-traditional marks need to understand why, and what they can do about it.

With the International Trademark Association (INTA) Annual Meeting coming to London this year, it is a good time to take stock of the landscape and think practically about how businesses can strengthen their position.

At a glance

Non-traditional trade marks, including shapes, colours, sounds and other unconventional brand identifiers, are registrable in principle but face much steeper hurdles in practice. The core challenge is distinctiveness: trade mark offices and courts recognise that consumers simply do not tend to interpret a product’s shape or colour as an indicator of who made it, in the way they would a brand name. That means businesses hoping to register these marks often need to invest heavily in building recognition over time and gathering strong evidence to support their applications.

Why it matters

Brands today are built on much more than names and logos. Think of the curved shape of a Coca-Cola bottle, the specific orange of the EasyJet livery, or the Intel chime. These non-traditional elements can become powerful identifiers in the marketplace, instantly connecting a customer to the company behind a product or service. If a competitor copies one of those features, the brand owner wants to be able to stop them, and trade mark registration is the most effective way to do that.

The problem is that trade mark law was originally designed with words and images in mind. Non-traditional marks do not fit neatly into that framework. The key legal requirement is "distinctiveness", which in plain terms means the mark must be capable of telling customers that a product or service comes from a particular business, rather than just being a generic or decorative feature. For a brand name, that is usually straightforward. For the shape of a soap bar or the colour of a robot, it is much harder.

Courts have consistently held that consumers are not in the habit of identifying the origin of products based on their shape or colour alone. As a result, a shape mark will only succeed if it "departs significantly from the norms or customs of the sector." In other words, being slightly different is not enough. The shape or appearance must be genuinely unusual in its market. A dishwasher tablet in a standard rectangular shape, for example, has been refused registration because it looks too much like every other dishwasher tablet on the shelf. By contrast, a Bang & Olufsen loudspeaker with a striking, pencil-like design was accepted because its aesthetic qualities were so distinctive that consumers in that market would recognise it as identifying a particular brand.

A recent decision of the General Court neatly illustrates the practical difficulties that arise in this area. In Savencia v EUIPO (Case T-481/24) of 10 December 2025), Savencia SA tried to knock out Hofmeister's EU trade mark registration for a three-dimensional mark in the shape of a cheese, pointing to its own earlier national shape marks. EUIPO's Board of Appeal sided with Hofmeister and threw out the challenge, but the General Court disagreed and overturned that decision. The Court found that the Board had got it wrong when weighing up the likelihood of confusion, particularly in how it dealt with the distinctive character of Savencia's earlier marks.

The Court confirmed that an earlier registered national trade mark must be afforded a "certain degree of distinctiveness" when relied on in support of opposition to the registration of an EU trade mark. In this case, the General Court considered that the Board of Appeal had made a legal error in denying the distinctiveness of the earlier national shape marks. Failing to accord the earlier national mark the required minimum degree of distinctiveness by virtue of its national registration prevented the Board of Appeal from properly assessing the likelihood of confusion between the marks.

The case shines a light on a wider problem for brand owners in the cheese and dairy world: product shapes in this sector tend to look the way they do because of how they are made, how they have always been made, the technical function they achieve or what shoppers expect and are accustomed to, not because of branding. Getting a trade mark for a cheese shape is an uphill battle, because the applicant needs to show that the shape departs significantly from the norm or customs of the sector, and that is a bar very few can clear. Even if you do manage to get the registration across the line, enforcing it is another matter entirely, since the protection you end up with is usually quite narrow.

Savencia v EUIPO is a helpful steer from the General Court that weak distinctiveness should not shut the door on protection completely, but businesses should not kid themselves: three-dimensional marks for product shapes like these will remain tricky territory, sitting somewhere between genuinely protectable and simply describing what the product looks like.

The same logic applies to colours. While it is possible in principle to register a single colour or colour combination as a trade mark, it is very difficult in practice. Cadbury's long-running battle to protect its iconic purple for chocolate products is a well-known example of how complex these cases can become. The courts have scrutinised not just whether the colour is distinctive, but how the application itself is worded, requiring precision and clarity that goes well beyond what most brand owners would expect.

Sound marks are getting a fresh look too. In BVG v EUIPO (10 September 2025, T 288/24), the General Court said a snappy four note jingle can clear Article 7(1)(b) EUTMR. In other words, “short” and “simple” are not dirty words: what matters is whether people will hear the tune and, in the real world setting where it’s used (think station announcements or app start up sounds), recognise it as coming from one source. That gives brands more room to protect tight sonic logos, so long as the sequence is memorable and not just a functional noise.

In Ardagh Metal Beverage Holdings v EUIPO (7 July 2021, T 668/19), the General Court found that a can opening click, a short pause and a fizz were nothing more than the ordinary sounds of using the product, so the mark lacked inherent distinctiveness: people would hear it as “a can being opened”, not as a badge of origin. The takeaway: if your sound is just how the product works, it will struggle. Build in a memorable melodic twist, rhythm or interval so the ear catches a brand cue rather than a generic noise.

Smell marks remain the outlier. The Court of Justice’s landmark ruling in Sieckmann (12 December 2002, C 273/00) still sets the tone: a scent must be represented in a way that is clear, precise, self contained, easily accessible, intelligible, durable and objective. Even though the EU scrapped the old “graphic representation” rule, the standard now lives on in the Recital 13 of the EU Directive 2015/2436 and Article 3 of the 2018 EUTM Implementing Regulation. In practice, no scent has yet cleared that bar at EU level, so businesses should assume EUIPO will continue to reject olfactory marks for the foreseeable future.

Closer to home, the UK’s “cinnamon case” (John Lewis of Hungerford) is instructive. In this case, which predates both the ECJ's decision in Sieckmann and the recast EU Trade Mark Directive's requirement that a sign be represented in a manner that is "clear, precise, self contained, easily accessible, intelligible, durable and objective", the applicant sought to register “the smell, aroma or essence of cinnamon” for furniture, but the Trade Marks Registry held that the description was not sufficiently precise or objective, and that technical data would not cure the deficiency because it is not intelligible to the average consumer.

Also still on the Register is UK00002000234 for “the smell of bitter beer” applied to darts flights: it remains registered because legacy registrations are not re examined against today’s representation standard on renewal and they subsist unless and until successfully revoked for non use or declared invalid.

The takeaway: until there is a reliable, standardised way to represent a scent so that the scope of the mark is clear to all, olfactory marks in the UK are unlikely to succeed.

Slogans and straplines present similar challenges. A catchy phrase used in advertising may feel like a core part of your brand, but trade mark offices will often refuse registration if the slogan is seen as purely promotional or laudatory rather than as an indicator of origin. Nestlé's attempt to register the phrase "Have a Break" (without the accompanying words "Have a Kit Kat") for chocolate and confectionery is a well-known example. Despite decades of use and massive consumer recognition, Nestlé faced a long legal battle over whether the slogan had acquired distinctiveness in its own right, separate from the full "Have a Break, Have a Kit Kat" phrase. Ultimately, after protracted litigation, Nestlé succeeded in registering the slogan "HAVE A BREAK" as a trade mark in the United Kingdom, with the courts accepting that the phrase had acquired distinctive character through long and extensive use. For slogans, as with shapes and colours, the bar is high, and the evidence needed to clear it is substantial.

The case highlighted just how difficult it can be to show that the public associates a slogan specifically with one trader, rather than simply recognising it as a familiar advertising phrase. For slogans, as with shapes and colours, the bar is high, and the evidence needed to clear it is substantial.

For businesses, this matters commercially. If you have invested in a distinctive product shape, a signature colour scheme, a recognisable sound, or a memorable slogan, and you cannot register it, you may struggle to prevent competitors from adopting something confusingly similar. That can dilute your brand, erode customer loyalty, and ultimately affect your bottom line.

Key takeaways

Distinctiveness is the main battleground. For non-traditional marks, the single biggest challenge is proving that consumers actually perceive the mark as identifying a particular business. Trade mark offices start from the position that most people do not naturally think of shapes or colours as brand indicators, so the burden on the applicant is high.

The mark must stand out from the crowd. It is not enough for a shape or colour to be slightly different from competitors' products. The mark must depart significantly from what is normal or expected in the relevant sector. A hexagonal cigarette packet, for example, succeeded because no other tobacco brand used that shape. It was genuinely eye-catching and unusual in context.

Context and consumer attention matter. The type of product and the likely buyer both play a role. Consumers tend to pay less attention to the appearance of everyday, low-cost items like cleaning products, making it harder to register shape marks in those categories. For premium or specialist goods (high-end audio equipment, for instance) consumers are more discerning, and a distinctive shape is more likely to be perceived as a brand identifier.

Acquired distinctiveness can save the day, but it takes effort. Even if a mark is not inherently distinctive, a business can sometimes succeed by showing that, through extensive use and promotion, the public has come to associate the mark with its brand. This is known as "acquired distinctiveness." The evidence required is substantial: think large-scale advertising spend, high sales volumes, customer surveys and witness statements. The weaker the mark's inherent distinctiveness, the stronger the evidence needs to be.

Precision in drafting the application is critical. Particularly for colour marks, the way the application is worded can make or break the registration. Vague or ambiguous descriptions have been rejected by the courts, while clearly defined marks, such as a single colour identified by a precise Pantone reference, stand a better chance.

Slogans need to do more than promote. A catchy strapline is not automatically registrable as a trade mark. If the phrase is seen as merely promotional or descriptive, it will be refused. To succeed, a slogan must either be inherently distinctive (for example, through a play on words or an unusual turn of phrase) or must have acquired distinctiveness through long and extensive use. As the Nestlé "Have a Break" saga showed, even a household phrase can face years of legal challenge if there is doubt about whether consumers treat the slogan itself as a badge of origin.

Two-dimensional depictions are treated differently. There is an important distinction between registering the actual three-dimensional shape of a product and registering a two-dimensional image that merely alludes to or represents a product's characteristics. A stylised graphic that evokes but does not directly replicate the product shape may face a lower hurdle, though a straightforward picture of the product itself is unlikely to succeed.

Practical tips

Invest in design differentiation from the outset. If you want trade mark protection for a product shape or packaging, design it to be genuinely unusual in your market. Research what competitors are doing and aim for something that clearly stands apart. The more your shape or packaging looks like industry standard, the harder it will be to register.

Build your evidence base early. If you plan to rely on acquired distinctiveness, start documenting your marketing spend, sales figures, media coverage and customer recognition from the very beginning. Keeping organised records makes it far easier to put together a convincing case later on.

For slogans, think about what makes them distinctive. If you want to register a strapline, consider whether it goes beyond simply describing or praising your product. Phrases with wordplay, double meanings or unexpected imagery tend to fare better. If the slogan is more straightforward, be prepared to invest in building up recognition over time and gathering evidence of acquired distinctiveness.

Sound marks post BVG: short is fine, but make it memorable. Design sonic logos that have a distinctive sequence, rhythm or interval. File an MP3 and a clear description, and explain the real world context in which consumers hear it (e.g., app launch, station announcements). Steer clear of sounds that are just how the product operates.

Scent marks: be realistic and use alternatives. EU and UK practice still makes olfactory marks highly unlikely. Consider other tools instead: protect bottle/pack designs, rely on passing off and unfair competition for overall get up where appropriate, and keep formulation details as trade secrets supported by contracts.

Be precise with colour marks. If you want to protect a brand colour, identify it by a recognised reference system such as Pantone. Make sure the application describes the mark clearly and without ambiguity. Avoid phrases like "predominant colour" that could introduce uncertainty about what exactly the mark covers.

Consider your market carefully. Think about who your customers are and how much attention they pay when buying your type of product. If you operate in a sector where consumers are highly engaged and brand-conscious (luxury goods, technology, specialist food and drink) your prospects for registering a non-traditional mark may be stronger.

Consider 2D routes and design rights. Where a 3D product shape struggles, a distinctive 2D depiction or a registered design can often deliver quicker, cleaner protection while you build distinctiveness for trade mark purposes.

Sequence and scope your filings. Start narrow if needed, focus on the core goods and key territories, and expand as recognition grows. Align your filing strategy with marketing roll outs so the evidence base develops in step with protection.

Get specialist advice before filing. Non-traditional trade mark applications are more complex than standard word or logo marks, and the risk of refusal is higher. Working with an experienced IP adviser before you file can help you assess whether your mark has realistic prospects of registration and, if so, how best to present the application.

Think about the broader toolkit. Trade mark registration is not the only option for protecting non-traditional brand elements. Registered and unregistered design rights, passing off, and copyright may also offer protection in certain circumstances. A joined-up IP strategy that considers all available rights is often the most effective approach.

Keep an eye on the evolving landscape. The law in this area continues to develop, and what is registrable today may look different in a few years. Attending events such as the INTA Annual Meeting is an excellent way to stay informed about current trends and connect with specialists who can help you navigate the process.

Non-traditional trade marks represent a significant opportunity for businesses that are willing to invest in truly distinctive branding. The registration process is undeniably challenging, but with careful planning, strong evidence and expert guidance, it is far from impossible.

Stay tuned for more from our series of insights as we count down to INTA 2026. For questions on non-traditional trade mark protection, registration strategy, or to arrange a meeting at INTA, contact Jade MacIntyre or Erika Coccia.