Key Takeaways

  • A trademark type device identifies and distinguishes the source of goods or services and can include words, images, logos, colors, shapes, sounds, or scents.
  • Device marks protect visual symbols or designs, even without letters or words, and are commonly used alongside word marks for broader protection.
  • Unconventional trademarks, like colors, product shapes, sounds, and smells, require distinctiveness to qualify for protection.
  • Certification and service marks indicate compliance with standards or identify services rather than goods.
  • Trademark applications can be denied if the mark is functional, generic, or would unfairly limit competitors’ use of common elements like colors.

Trademark type device describes something which is used to distinguish a product or service. Common features of a trademark include the shape of a product, the type of packaging, or color combination.

Trademark Features

Trademarks come in various types, such as collective marks, service marks, and certification marks. The only requirement is that the mark differentiates the products or services of one company from another. They may also be used to indicate the quality of a particular product.

When a significant section of the population is familiar with a trademark, it can become a well-known mark. The status of a well-known mark gives a trademark even greater protection. It also prevents individuals from filing trademark applications that are imitations of the well-known mark.

Trademarks often include:

  • Words
  • Letters
  • A brand
  • A signature
  • A ticket

In addition, trademarks can incorporate a combination of these features, such as by combining a letter, image, and color in a specific way. This is referred to as a device mark. You should also note that a device mark can protect a design that doesn't make use of words or letters.

Types of Device Marks

A trademark type device often refers to a device mark, which is any design, image, or logo used to distinguish a product or service. Device marks are especially useful when the brand identity relies on visual elements rather than words. Common types of device marks include:

  • Logos and symbols – Example: Nike’s “swoosh” or Apple’s “bitten apple.”
  • Stylized graphics – Unique artwork or illustrations associated with a brand.
  • Combination marks – Logos that include both a device and a word mark for broader protection.
  • Abstract or non-representational designs – Shapes or patterns that are distinctive to a brand even if they do not depict an object.

Registering a device mark can provide stronger protection against infringement because it covers the exact visual design, which competitors cannot legally imitate.

Denying a Trademark Application

Courts may deny an application to trademark a color if they decide that this would result in no colors being available for competitors. However, in certain instances, a court may rule that this is not a barrier to granting one company the use of a specific color for their products.

In 1995, the Supreme Court issued a ruling stating that the green-gold color of a cleaning pad could serve as a trademark.

An additional reason for denying a trademark application linked to a color could be that the color performs a functional purpose for the product. Courts have issued competing decisions on this point, however, so you may still be able to secure trademark protection for a color that has a functional role.

Word Marks

Trademarks can also be applied to specific words, allowing the trademark owner to use the word in whichever style, color, or font they choose. Two examples of this are Google and Netflix.

The word mark can also cover numerals and letters in combination.

Combination Marks

A combination mark merges a word mark and a device mark to create a single trademark. This provides flexibility because the owner can enforce rights against infringers who copy the name, the logo, or both together. For example, Starbucks® uses a combination mark of the word “Starbucks” with the iconic mermaid logo.

Combination marks are especially valuable when a company wants its name to be recognizable on its own but also benefit from visual branding.

Certification Marks

Products or services receive certification marks to let consumers know that they comply with certain standards. This may mean that a product has been tested in a specific way, or that the manufacturer followed guidelines while producing it. Items that typically carry certification marks are:

  • Refrigerators
  • Electric drills or other tools
  • Children's toys

Certification marks differ from collective marks, which are used only by companies within an association. On the contrary, certification marks are usable by any company that is in compliance with the relevant standards.

Service Marks

Service marks play a similar role to trademarks for companies who sell services but don't trade goods. A company may use a picture or drawing to help consumers identify the service being offered.

Service companies could also use a logo to make their service stand out. Logos are often simple, but eye-catching designs. Examples of logos include:

  • The apple used by Apple Computers
  • The double arches used to advertise McDonald's

Like logos, slogans used to advertise a company's products or services can receive trademark protection. McDonald's offers another example in this case with its slogan, "I'm lovin' it."

Sound and Smell Marks

Specific sounds or smells can also be accepted as a trademark. For instance, a type of perfume or a sound made by a particular product could be considered.

To be accepted as a sound mark, a sound must be distinguishable from other products or services. One example of this is Harley Davidson's attempt to obtain a sound mark for the sound of its motorbike exhaust to prevent other companies from replicating it.

Product Shape

A court can rule that the shape of a product counts as a trademark. In the past, courts generally refused to grant such trademarks until the product shape was widely associated with the product itself within the population. One example of this is the Coca Cola bottle.

However, this traditional view may be under revision as courts have found that product shapes may receive trademark protection although they are not yet widely known.

Color, Motion, and Other Non-Traditional Marks

Beyond product shapes, other non-traditional trademarks may qualify for protection if they are distinctive and serve as identifiers of the source:

  • Colors – A single color or color combination can function as a trademark (e.g., Tiffany & Co.’s blue box).
  • Motion Marks – Short, distinctive animations or sequences can be registered as trademarks if they are uniquely associated with the brand.
  • Holograms and 3D Designs – Dynamic or three-dimensional elements can function as source identifiers.
  • Scents and Tactile Marks – A unique smell or feel may qualify if consumers recognize it as brand-specific.

To register these marks, applicants must typically prove that the mark is non-functional and has acquired distinctiveness, meaning the public associates it directly with the source of goods or services.

Frequently Asked Questions

1. What is a trademark type device? A trademark type device is a visual mark, such as a logo or design, that distinguishes a company’s goods or services from competitors.

2. How is a device mark different from a word mark? A word mark protects the textual name, while a device mark protects the visual design. Using both together strengthens trademark protection.

3. Can colors or scents be registered as trademarks? Yes, if they are distinctive and non-functional. Examples include Tiffany blue and Play-Doh’s scent.

4. What is a combination mark? A combination mark includes both a logo (device mark) and a word mark, offering broader protection for brand identity.

5. Why might a trademark application be denied? Applications can be denied if the mark is generic, functional, or would unfairly limit competitors’ use of common elements like colors or shapes.

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