1. Non-traditional signs

Date Published

One of the intentions of the introduction of the Trade Marks Act 1995 was to broaden the definition of a trade mark.  The 1995 Act at section 17 defines the nature of a trade mark in the following words:

A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.

The word "sign" is defined at section 6 as follows:  

Sign includes the following or any combination of the following, namely any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.

This definition added to the legislation four signs which at the time of the introduction of the Trade Marks Act 1995 were new to consideration as trade marks.  These are "shape", "sound", "scent" and "aspect of packaging".  The definition also articulates "colour" as a sign, and although colour was dealt with on occasions under the repealed Act, it seems appropriate to deal with it in this section, along side the more unusual kinds of sign.

It is important to note that the definition is a non-exclusive definition, that is, it does not list all and everything that can be regarded as a sign, and therefore potentially as a trade mark.  Signs not articulated in the definition are already forming the subjects of applications for trade marks.  These include movement marks, holograms, tastes and textures.

As a group, these trade marks are referred to as “non-traditional signs”.

Note:  In this Part "aspect of packaging" is dealt with in the "shape" and "colour" sections as these are the areas that incorporate the vast majority of trade marks that could be said to be aspects of packaging.