Sound, shape, movement, position… What if your next differentiating asset looked nothing like a word or a logo, but instead offered an entirely new sensory experience?
So-called non-traditional trademarks—often little known, sometimes feared—are nonetheless fully enforceable for those who understand the rules of the game. And they are playing an increasingly important role in business.
While obtaining a non-traditional trademark can sometimes be a challenging process that discourages applicants, it is precisely this inherent ability to stand apart from existing signs in a given sector that, once registered, gives such marks undeniable value.
A Trademark Beyond Words
In an overcrowded market, where traditional signs sometimes struggle to stand out, non-traditional trademarks offer genuine visual, auditory, or gestural distinctiveness. Yet originality comes at a price: stricter legal standards and more rigorous examination by intellectual property offices.
Sound marks, motion marks, position marks, color marks, or even three-dimensional shapes… such signs must significantly diverge from the practices of the sector to be registrable. Mere difference is not enough. It must also be shown that the relevant public perceives them as indicators of origin, rather than as purely decorative or technical features.
Sound, movement, position, and color marks are all around us. Even if often overlooked or misunderstood, their economic and competitive importance is such that their protection should never be dismissed or neglected at the outset.
That said, protecting these signs is far from easy. According to established case law, registration is possible only if they “depart significantly from the norms or customs of the sector.” Moreover, courts note that consumers do not spontaneously perceive these signs as trademarks or indicators of origin—unlike words or logos. It is therefore objectively more difficult for them to qualify as valid trademarks.
Caution and rigorous analysis are therefore essential before filing—but registration remains possible if supported by the principles confirmed in recent case law.
Sound Marks: Between Memorability and Legal Perception
Take the emblematic example of the “Pschitt” sound [1], evoking the opening of a can, followed by about one second of silence, then approximately nine seconds of fizzing.
The General Court of the EU validated this registration (covering Classes 6, 29, 30, 32, 33), emphasizing that the sound served more than a technical function: it had the capacity to stick in the memory and thus designate origin.
Conversely, the famous Netflix jingle (heard when opening the application), filed in 2018, was refused by the Office for Classes 38 and 41 [2].
There was no obvious link between this sound sequence and the entertainment services in question, which might have enabled it to be perceived as a trademark. No official reasoning was published, but it is likely that the brevity of the sound [3] or the absence of a clear connection with the services offered worked against it. Netflix responded strategically by filing a multimedia mark combining sound and image [4]—an interesting example of creative workaround.
Shape, Position, and Motion Marks
Guerlain and its iconic packaging… when shape becomes an identity marker
Three-dimensional trademarks enjoy mixed success. Some manage to convince judges [5] through their “fanciful” nature, such as Guerlain’s lipstick, whose shape evoked a boat’s hull or a bassinet—thus breaking with sector codes.
Others fail. Such was the case for a particular après-ski boot design: registered as a trademark in 2012 (Classes 18, 20, and 25), it was annulled in 2022. Despite a combination of visual elements, the General Court held (in particular at paragraph 99) that these were mere “decorative or technical details that did not affect the overall appearance of the product and constituted only variations of a typical après-ski boot,” lacking distinctiveness. A severe conclusion—unless one accepts that the filing concerned the product’s shape itself, not its overall appearance.
Motion Marks and Functional Perception
Motion marks must also meet the distinctiveness requirement. For example, a sequence showing a hand opening and closing, filed for televisions, screens, loudspeakers, etc. in Class 9, was refused for lack of distinctiveness [6]. The Office considered that the gesture was perceived as an instruction for use (switching on/off), rather than a badge of origin. Such marks can only succeed where the movement carries strong symbolic or distinctive value.
Position Marks: Subtlety and Stringency
Position marks—signs capable of functioning as a trademark by virtue of their placement on a product—pose particular challenges. While Levi’s® famous V-shaped stitching on the back pockets of jeans has become iconic, other signs struggle to persuade examiners.
Exemple
A trademark application for shoe laces with red, pointed tips was refused [7]. The color was precisely defined (Pantone 18-1658 TCX Pompeian Red), yet it was not perceived as an indicator of origin. Other design elements recognizable in the visual representation were not covered by the mark. The EUIPO therefore refused the application (Classes 10 and 25).
It must be acknowledged that the presence of such a color is hardly perceived as a badge of origin—unless distinctiveness acquired through use can be shown (which, in this case, it was not).
Once again, only proof of extensive and recognized use could have tipped the balance.
Should We Give Up on Non-Traditional Marks?
Certainly not. These signs are often crucial for companies and deserve careful consideration to properly assess the chances of registration.
Such trademarks require thorough preparation, a clear positioning strategy, and often hybrid approaches, such as:
- combined filings (image + sound);
- claims of distinctiveness acquired through use;
- or protection via unfair competition or design rights.
They can provide powerful protection for key business assets—whether a sound signature, an iconic packaging, or a strong visual element in a digital environment.
Conclusion
Filing a non-traditional trademark is no trivial matter. It requires solid knowledge of case law requirements, anticipation of potential objections, and precise evidence documenting the distinctive function of the sign.
But when the conditions are met, such marks become formidable levers of differentiation—especially in crowded markets or in digital and immersive environments.
Mai 2025
Contributing author
Fabrice Pigeaux
Partner | European Trademark & Design Attorney
Sources
- Tribunal de l’Union européenne, arrêt du 7 juillet 2021, affaire T-668/19 — son “Pschitt” (canette) : Curia – Document 243853
- EUIPO – Marque sonore n° 017912475 : EUIPO
- EUIPO – Marque sonore n° 017916805 :EUIPO
- EUIPO – Marque multimédia déposée par TotalEnergies (n° 018586755) : EUIPO
- Tribunal de l’Union européenne, arrêt du 14 juillet 2021, affaire T-488/20 — rouge à lèvres Guerlain : Curia – Document 244146