As a rule, in practice we encounter traditional trademarks, among which are verbal, visual, volumetric and their combinations. The list of non-traditional designations is significantly more diverse. Among them are occasionally found: color, holographic, dynamic (moving), positional, gestural, sound, light, olfactory, tactile and gustatory. In accordance with Art. 1482 of the Civil Code of the Russian Federation (“verbal, figurative, three-dimensional and other designations or their combinations may be registered as trademarks,” that is, it can be assumed that the phrase “other designations” indicates specifically non-traditional trademarks)
they can also be registered, but this is much more difficult to do.
Thus, among non-traditional designations, visual and non-visual trademarks are distinguished.
Visual signs may include holographic, gestural, positional, multimedia, light, color, as well as changing or dynamic trademarks.
As an example of registration of multimedia marks by Rospatent, we can cite the following registration certificates for goods of the 3rd class of the ICGS: reg. No. 441848 dated 07/28/2011 and No. 442442 dated 08/09/2011 for The Procter & Gamble Company (USA), as well as reg. No. 322035 (35th class of the ICTU); 345836 (9th class MCTU), 361937 (9, 40, 41st classes MCTU) and 249747 (35, 38, 41st classes MCTU).
In 2005, Rospatent registered the mark No. 296496 of a changing sign in combination with a sound effect in relation to services of the 41st and 42nd classes of the International Classification of Standards in the name of Phoenix-film LLC.
Registration of a color designation is more difficult, since it is associated with a significant restriction of the rights of other companies, since the number of colors is relatively small, and some products have their own natural color. Such registration is possible only in respect of specific goods or services and only if there is evidence of acquired distinctiveness at the time of filing the application for registration of the color mark. For example, certain colors are traditionally used in some countries as symbols identifying them, and some colors are used as signal symbols - blue indicates the presence of water, red indicates a fire hazard, green, yellow and red colors in traffic lights mean certain commands for drivers, etc.
However, the color of a product, packaging design or material from which a product is made for marketing is important for the consumer, which means the question of ensuring legal protection of color arises.
An important task when registering a color designation is to establish its distinctiveness. That is, for its registration there must be convincing evidence of acquired distinctiveness, and the description of each color must strictly comply with the international color classification system by indicating the appropriate color code.
Despite the fact that in Russia the registration of color marks is difficult, yet already in 2012, a combined designation in the form of a relief image of the sun was registered in the Russian Federation, including sensory and tactile characteristics (reg. No. 462927), and an orange square was registered in the name of Penoplex SPb LLC in relation to goods of the 17th class in 2010 (reg. No. 406752), sign No. 561631 was registered in the name of PJSC Gazprom (blue square; 1, 4, 35, 37, 39, 42nd classes of the MKTU, 2016), No. 556088 in the name of PJSC Sberbank of Russia (green square, 36th class of the MKTU, 2015 city), No. 560598 in the name of PJSC Mobile TeleSystems (red square, 38th class of the ICTU, 2015), etc.
There are also few light-based registered trademarks (in 2008, one trademark was registered in the name of Microsoft Corporation - registration No. 345836 for the 09th class of the ICGS, which is a series of consecutive nine white, blue, cyan and light green light flashes), which is due to their low distinctiveness and low demand for this form of individualization of goods and services among entrepreneurs.
Positional trademarks are also not popular. An example is the position mark under international registration No. 1031242 in the name of Christian Louboutin in relation to women's shoes with red soles (25th class of the ICGS) or the position mark in the name of the German company LLOYD Shoes GmbH (international registration No. 695568 in 1998). A feature of positional designations is that they must always be located in a certain place on the product in an unchanged appearance and size. Decisions on their registration are made after documentary confirmation by the manufacturer of their acquired distinctiveness.
The number of registered gestural signs is also insignificant. This is due to the fact that any interested person can freely use gestures in the process of normal non-verbal communication or during a transaction, which means it is almost impossible to prohibit the use of a particular gesture. It is important to consider the meaning of gestures, which may vary from country to country. For this reason, such signs have low distinctiveness. Nevertheless, a trademark was registered in the United States in the form of a thumb raised over a fist with a black fingertip on it, decorated with two fluttering ribbons and an image of the head of a bird of prey (No. 4735632).
In recent years, there has been increasing interest in holographic trademarks, which are a type of three-dimensional signs. To register them, it is necessary to provide a detailed description of the hologram and its visual image with a selection of images confirming the desired holographic effect.
Non-visual signs include olfactory, sound and tactile signs, which are usually represented by symbols or their description, since they depend on the ability to reproduce for presentation to third parties and research for identity and/or similarity with other trademarks.
The main obstacle to registration of such designations is the requirement to present them in graphical form. Since smell is closely associated with memory and emotions, and when combined with attractive design, it increases purchasing activity, the use of smells as symbols is very promising. However, the perception of smells and taste is subjective and depends on many factors, including the age of the consumer, health status, etc., which means their use as trademarks is quite problematic.
Examples include registered olfactory trademarks in the USA (the smell of plumeria (a tropical tree) in relation to threads for sewing and embroidery) and in the UK (the smell of bitter ale for darts and the smell of roses for marking car tires), and in Russia the designation “Leather aroma” was registered by Rospatent in 2012 in the name of entrepreneur N.A. Kolyago in the form of a square a leather tag with a “pronounced smell of genuine leather” (registration No. 470375, 41st class of the ICGS). However, in this case, a combined trademark consisting of both an olfactory element and a verbal “Leather fragrance” was registered, which once again confirms the difficulties in registering a purely olfactory designation without reference to verbal or figurative elements.
Tactile signs are also rarely registered. For example, in the USA (2005) a tactile mark in the form of a velvet surface of a bottle was registered (now discontinued) (registration no. 76634174), and in Germany a word mark “Underberg” was registered in Braille (dot tactile font). Flavor designations are also registered quite rarely due to the small number of taste sensations (bitter, salty, sour, sweet, tart, mint, metallic, burning, alkaline, meat), which can lead to infringement of the rights of other manufacturers. In addition, taste sensations, like olfactory and tactile sensations, are subjective and depend on the psychophysiological state of a person.
The distinctive ability of sound marks is quite higher than that of other non-traditional signs, which is associated with the possibility of using fragments of musical works, industrial and natural noises, the sound of different instruments and their arbitrary combinations. Examples of sound trademarks registered in Russia include the following designations: in the name of CJSC "Regional Radio Channel" (reg. No. 213565; 35, 38 and 41st classes of the IKTU, 2002), in the name of OJSC "Wimm-Bill-Dann Food Products" (reg. No. 2356; 11, 5, 29, 32, 35, 42nd classes of the ICTU, 2003), as well as in the name of Siemens Aktiengesellschaft for international registration (registration No. 836242; 7, 9, 10, 11, 12, 16, 35, 36, 37, 38, 41, 42nd classes of the ICTU, 2004), etc.)
Currently, the use of such non-traditional designations as Qr codes, which are easily recognized by reading devices, is becoming popular.
As can be seen from the above, the practical use of non-traditional trademarks is currently limited due to the lack of possibility of their objective representation in visual and non-visual form. Nevertheless, one can hope that in the future, with the inclusion of additional legal norms in legislation, their registration will take its rightful place among trademarks.
