A Non-Traditional Trademark (NTTM) is any brand identifier that goes beyond classic words, logos, or slogans. It uses sensory, spatial, or digital elements to connect a product to its source.

These include sound (the Netflix "ta-dum"), colour (Tiffany Blue), 3D shapes (the Toblerone bar), scents, textures, and motion graphics.

An NTTM is any commercial identifier that falls outside the scope of classic words or 2D graphics. They generally fall into three categories:

• Sensory Marks:

  • Sound: Think of the Intel bong, the Netflix "ta-dum," or a specific electric vehicle's mock engine hum.

  • Scent/Olfactory: A distinctive fragrance applied to a product (e.g., Verizon’s signature store scent or bubblegum-scented sandals).

  • Texture/Tactile: The unique physical feel of a luxury product's packaging, like velvet-textured wine bottles.

    
    

• Visual and Spatial Marks:

  • Shape (3D): The distinctive silhouette of a Coca-Cola bottle or the geometry of a Toblerone chocolate bar.

  • Colour (Single or Combinations): Think Tiffany & Co. Blue or Christian Louboutin's red shoe soles.

  • Position Marks: The specific placement of a design element on a product, such as the red tab on Levi’s jeans pockets.

    
    

• Movement & Digital Marks:

  • Motion & Holograms: Animated logos that play on screens during a digital checkout or app startup.

  • Multimedia Marks: Short video and audio combinations (e.g., a signature 20-second digital animation sequence).

    
    

The push toward non-traditional marks is driven by digital innovation and changing consumer behaviour:

• The digital & gaming boom: At the recent INTA 2026 Annual Meeting in London, significant discussions focused on the metaverse, gaming and digital domains. Experts pointed out how things like in-game gestures, character "emotes" (like in Fortnite), and haptic controller feedback are emerging as valuable, monetizable assets that brands want to protect.
  

• The "Super Simon" Catalyst: Landmark legal decisions have paved the way for complex digital filings. For instance, the EUIPO’s recent acceptance of a 22-second multimedia animation proved that complex storylines without any explicit text or logos can successfully act as source identifiers.
  

While the concept is exciting, registration of an NTTM is notoriously difficult. Less than 1% of the total global trademark applications generally consist of non-traditional marks, mainly due to two massive legal roadblocks:[1]

A. The "Graphical Representation" Dilemma

Historically, a trademark had to be capable of being written down or drawn on paper. How do you graphically represent a smell or a sound?

• The Shift: Global frameworks are adapting. The European Union Intellectual Property Office (EUIPO) and the UKIPO now accept digital file submissions (like MP3s, MP4s, or 3D digital renderings), which has simplified multimedia and sound filings.[2]
  

• However, the world landscape remains fragmented. Jurisdictions like India still lean more heavily on strict graphic representation rules (such as submitting musical notation for sound), making sensory constitutes structurally a much steeper climb.
  

B. The High Bar for "Distinctiveness"

For a trademark to be granted, consumers must instinctively look at it and say, "Ah, this tells me exactly who made this product."

• The Problem: Courts and registries argue that consumers naturally view a product's shape, color, or sound as purely functional or aesthetic choices, not as a badge of origin.
  

• The Solution: Brands almost always have to prove acquired distinctiveness (secondary meaning). This requires massive investments in marketing and extensive consumer survey evidence to prove that the public associates a specific color, texture, or motion exclusively with their brand over time.
  

This paradigm shift is also giving trademark administrators a headache. Registries are currently grappling with operational questions: How do examiners conduct an effective "prior rights" search for a scent or a movement to ensure it doesn't conflict with an existing registration?[3]

Feature written by Kushraj Singh, Senior Legal Correspondent, The Global IP Magazine.

Email Kushraj: newsdesk@northonsprmarketing.com