Color, Sound, Scent, and Motion: Registering Non-Traditional Trademarks
By Casey Scott McKay ·
Non-traditional trademarks — a color, a jingle, a smell, an animated logo — are registrable in the United States, but almost never on the terms applicants expect. This article traces the doctrine from the pre-Lanham ban on color per se through In re Owens-Corning, the circuit split it created, and the Supreme Court's resolution in Qualitex Co. v. Jacobson Products Co., then follows the rule into sound marks under In re General Electric Broadcasting, scent under In re Clarke, flavor under In re N.V. Organon, and motion and holograms under In re Upper Deck. It explains the never-inherently-distinctive rule that governs color, scent, and flavor, the narrow inherent-distinctiveness exception the Federal Circuit carved out in In re Forney Industries, and why functionality kills more of these applications than distinctiveness ever does. It covers the color depletion and shade confusion arguments the Court rejected and the ways they resurface anyway, the substantially exclusive use problem that sank a billion dollars of yellow Cheerios advertising, and the drawing and description rules in TMEP 1202.02, 1202.05, 1202.13, and 1202.15 that decide what an unusual mark actually covers. It closes with the recurring fact patterns, the questions the law has not answered, and a candid view of when filing is worth the money.
IP and Technology > Trademarks | Article | Published 20 February 2025 - Updated 16 May 2026 | Casey Scott McKay - marksy.us
Summary. Non-traditional trademarks — a color, a jingle, a smell, an animated logo — are registrable in the United States, but almost never on the terms applicants expect. This article traces the doctrine from the pre-Lanham ban on color per se through In re Owens-Corning, the circuit split it created, and the Supreme Court's resolution in Qualitex Co. v. Jacobson Products Co., then follows the rule into sound marks under In re General Electric Broadcasting, scent under In re Clarke, flavor under In re N.V. Organon, and motion and holograms under In re Upper Deck. It explains the never-inherently-distinctive rule that governs color, scent, and flavor; the narrow exception the Federal Circuit carved out in In re Forney Industries; and why functionality kills more of these applications than distinctiveness ever does. It covers the color depletion and shade confusion arguments the Supreme Court rejected and the ways they resurface anyway, the substantially-exclusive-use problem that sank a billion dollars of yellow Cheerios advertising, and the drawing and description rules that decide what an unusual mark actually covers. It closes with the recurring fact patterns, the questions the law has not answered, and a candid view of when filing is worth the money.
Keywords: non-traditional trademarks · color marks · sound marks · scent marks · motion marks · flavor marks · hologram marks · touch marks · qualitex · owens-corning · in re clarke · in re n.v. organon · in re forney · color depletion · shade confusion · aesthetic functionality · acquired distinctiveness · section 2(f) · tmep 1202.05 · failure to function
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