Beyond Words & Logos: Can You Trademark a Scent, Color, Sound or Shape?

When most people think of trademarks, they picture business names, catchy slogans, or slick vector logos. But trademarks are not limited to what you can read or print on a business card.

In the eyes of the United States Patent and Trademark Office (USPTO), a trademark is anything that identifies the commercial source of a product or service. That means if a sensory or structural feature like a signature shade of blue, a nostalgic smell, a recognizable audio chime, or even the distinct shape of a container tells consumers, "Hey, this specific company made this," it might just qualify as a non-traditional trademark.

Let's explore some of the world's most unique trademarks and uncover the legal hurdle most non-traditional marks must clear: Secondary Meaning.

Legendary Non-Traditional Trademarks in the Wild

Building a brand identity around sensory cues is not just clever marketing. It can become enforceable legal property. Here are a few famous examples:

• Tiffany Blue (Color): Tiffany & Co. owns a federal trademark for its signature robin’s-egg blue (Pantone 1837) on packaging and retail services. When you see that box, you do not think "generic turquoise." You think luxury jewelry.

• The Smell of Play-Doh (Scent): Hasbro officially registered the distinct scent of Play-Doh, described in legal filings as a sweet, slightly musky, vanilla-like fragrance with overtones of cherry and salted wheat dough.

• The MGM Lion’s Roar (Sound): Sound marks are surprisingly common. From the NBC chimes to Netflix’s "Ta-Dum" intro, sound signatures serve as immediate brand identifiers.

• The Coca-Cola Contour Bottle (Shape): Registered as a trademark in 1960, the iconic curved contour bottle is one of the most famous examples of trademarked product packaging (known legally as trade dress). The goal was to create a bottle so distinct that a person could recognize it by touch in the dark, or even if it broke on the ground.

  
  

The Catch: Why You Can’t Just Trademark Any Shape, Color, Sound, or Smell

If trademarking a shape, scent, sound, or color sounds easy, think again. The USPTO sets a high bar for non-traditional trademarks. To get one approved, your mark must clear two fundamental legal tests:

1. The Non-Functionality Requirement

A trademark feature cannot serve a functional purpose. If a design element makes the product cheaper to manufacture, easier to use, or work better mechanically, it cannot be trademarked.

• You cannot trademark a standard rectangular bottle shape because that shape makes manufacturing, shipping, and storage functional and efficient. Coca-Cola’s curved glass bottle, on the other hand, was purely aesthetic and non-functional.

• You cannot trademark the scent of a perfume or candle because the scent is the product. However, Play-Doh’s scent is non-functional. Modeling clay works the exact same way regardless of how it smells.

• Similarly, you could not trademark the color yellow for high-visibility safety vests because yellow serves a utilitarian safety function.

  
  

2. The Big Boss: Secondary Meaning (Acquired Distinctiveness)

When you register a made-up word like Kodak or Exxon, the USPTO considers it inherently distinctive. It gets protection from day one.

Product shapes, colors, and scents, however, are almost never inherently distinctive. The law assumes consumers view shapes, colors, and smells as purely decorative, practical, or ornamental unless proven otherwise.

To win USPTO approval for these features, most of the time you must establish Secondary Meaning (also called Acquired Distinctiveness under Section 2(f) of the Lanham Act).

What is Secondary Meaning?

Secondary Meaning occurs when extensive use and marketing shift the public's mental connection from the primary meaning ("that is a fluted glass bottle" or "that box is blue") to a secondary commercial source meaning ("that bottle shape means Coca-Cola" or "that blue box means Tiffany & Co.").

The Sensory Spectrum: How Secondary Meaning Applies

Because sensory trademarks work differently depending on the medium, the USPTO evaluates secondary meaning across a distinct spectrum:

• Colors & Product Shapes (Always Required): Colors and container shapes are never considered inherently distinctive. You must always prove secondary meaning.

• Scents (Virtually Always Required): Because consumers view smells on goods as decorative or functional, product scents (like Play-Doh dough or scented sewing thread) must prove heavy secondary meaning. On top of that, the scent cannot be functional, meaning perfumes and room sprays are completely disqualified.

• Sounds (It Depends): Unique, arbitrary audio signatures (like the NBC three-note chime or Netflix's "Ta-Dum") are considered inherently distinctive and get protection from day one without needing secondary meaning. However, commonplace sounds or natural product noises require full secondary meaning. For years, Harley-Davidson attempted to trademark its V-twin engine sound, but because competitors naturally produced similar sounds, Harley faced heavy legal pushback on whether consumers uniquely tied that noise to their brand alone and eventually withdrew the application.

How Do Brands Prove Secondary Meaning to the USPTO?

Proving secondary meaning requires real evidence. You cannot just tell the trademark examining attorney, "Trust us, everyone knows our bottle design or our shade of orange." You have to back it up.

When submitting an application for a non-traditional mark, brand owners typically present:

1. Long-Term Exclusive Use: Showing continuous, exclusive use of the mark (typically at least five consecutive years, but often much longer for non-traditional marks).

2. Substantial Advertising Spend: Demonstrating significant financial investment in marketing that specifically directs consumer attention to the feature. This is known as "look-for" advertising, such as telling customers to "Look for the contoured bottle shape" or "Look for the blue box."

3. Consumer Survey Data: High-quality market research showing that a substantial percentage of relevant consumers associate the shape, scent, color, or sound with a single brand.

4. Unsolicited Media & Sales Volume: Proof of widespread brand awareness, media coverage, and high sales figures tied to the product feature.

   
   

The Hit the Mark Takeaway

Can your business trademark a unique bottle shape, color, sound, or scent? Yes, but your strategy depends entirely on the type of mark you choose.

If you are crafting a unique audio signature, you might be able to secure protection on day one without waiting. But for shapes, colors, and scents, typically years of consistent market presence and deliberate brand positioning are mandatory long before filing. Knowing where your sensory assets fall on the spectrum saves time, money, and administrative headaches down the road.