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Three Non-Traditional Trade Marks in NZ 

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As the business landscape continues to expand, so does the concept of trade marks. While traditionally limited to logos and brand names, trade marks have expanded to include more non-traditional marks. Such marks give businesses new ways to protect their brand and differentiate it from competitors. This article will take you through three non-traditional trade marks that you can register for your New Zealand business.

What Are Non-Traditional Trade Marks?

Non-traditional trade marks are any trade mark that departs from the more ‘conventional’ type of marks. For example, traditional marks include:

  • words;
  • logos; and
  • slogans.

On the other hand, non-traditional marks cover other distinctive elements that can distinguish your goods or services from others. For example, non-traditional trade marks include:

  • sound marks;
  • scent marks; and
  • colour marks.

It is important to note that non-traditional marks are subject to the same legal requirements for registration as all other trade mark types. However, they also come with unique considerations for registration.

What Are Some Common Non-Traditional Marks?

Sounds Marks

Sound marks refer to distinctive sounds that act as an auditory identifier of your goods or services. This might either be an advertisement involving a sound or the sound of the good itself.

The most common sound marks include a catchy jingle or a spoken phrase. Some notable examples include the Nokia ringtone. 

Sound marks are useful because your customers can easily remember them. Sounds are also easy to spread via radio or television.

Registering a sound mark requires clearly representing the sound and providing evidence of its distinctive association with your brand.

Scent Marks

Also referred to as ‘smell marks’, scent marks refer to using a distinct fragrance associated with a good or service as a mark.

Scent marks are very rare. However, when used correctly, they are useful tools for brand recognition. Scent marks are most commonly used for goods or services associated with perfume, cosmetics, and food-related trade marks.

The nature of scent marks is that consumers are likely to only access the scent of a good after purchase. This means the scent may only become familiar to consumers who repeatedly use the good associated with the mark. As such, a scent would have to be quite uncommon for a consumer to think of it in connection with its source. This makes scent marks less effective if your business is seeking to reach a new customer base.

Colour Marks

Colour trade marks use specific colours or combinations to identify and distinguish goods or services. They rely on colour as the main means of brand identification. For example, consider the shade Tiffany Blue, which is associated with Tiffany & Co.

Registering a colour mark in New Zealand requires demonstrating that the colour has acquired distinctiveness through extensive use. This can be difficult and is likely only feasible if your brand is well-established and has a long history. 

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What is the Registration Process Like?

While non-traditional trade marks offer unique opportunities for brand differentiation, registering these marks in New Zealand involves several key considerations:

Distinctiveness

One of the main requirements for trade mark registration in New Zealand is demonstrating that your proposed mark is distinctive. This extends to non-traditional marks. Non-traditional marks must be capable of being distinguished from others in the market.  

Representation

Clear and accurate representations are essential for successful registration. Non-traditional marks may pose challenges in terms of representation. For example, it can be difficult to convey the characteristics of a scent mark to the Intellectual Property Office of New Zealand (IPONZ). However, providing a sound bite is a clear and easy way to represent a sound mark. Clear and accurate representations are essential for successful registration regardless of the mark type.

Evidence of Use

Trade mark applicants may provide evidence of use to support their registration claims. This is relevant if you have already used the mark in commerce and want to strengthen your application.

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Trade Mark Essentials in New Zealand

Our free Trade Mark Essentials in New Zealand guide explains how to register and defend your trade mark registration.

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Key Takeaways

Trade marks have expanded to include more non-traditional marks. Such marks give businesses new ways to protect their brand and differentiate it from competitors. Some non-traditional trade marks that are gaining popularity include:

  • sound marks;
  • scent marks; and
  • colour marks.

If you need help registering non-traditional trade marks, contact our experienced trade mark lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.

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Emily Young

Emily Young

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