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Yes, you can trademark a color, a sound, or a slogan, but the bar is higher than it is for a name or logo. These are called non-traditional trademarks, and they require proof that consumers already associate the element with your brand. A trademark lawyer can help you build that case and file correctly.
Tiffany’s robin-egg blue. The NBC chime. Nike’s Just Do It. Each of these is a registered trademark, and each one protects something that goes far beyond a name or a logo. These are called non-traditional trademarks, and they are some of the most powerful brand assets a business can own.
Richard Gearhart, founding partner of Gearhart Law, has helped businesses across New Jersey and beyond protect brand elements that most people do not realize can be trademarked. The process is more complex than a standard application, and the requirements are stricter. But when it works, the protection is extraordinarily valuable.
This post explains what non-traditional trademarks are, what it actually takes to get one registered, and where most applications fall short.
What Is a Non-Traditional Trademark?
A trademark is anything that identifies the source of a product or service and distinguishes it from others. Most people think of names and logos. But the law does not limit trademark protection to those two categories.
The United States Patent and Trademark Office (USPTO) recognizes a range of non-traditional marks, including colors, sounds, scents, product shapes, and slogans. What all of these have in common is that they must function as identifiers of source. In other words, when a consumer sees that color or hears that sound, they must associate it with a specific brand, not just find it appealing or memorable.
That association is the key. And proving it is where most non-traditional trademark applications succeed or fail.
The Distinctiveness Test
A color, sound, or slogan is not inherently distinctive. Unlike an invented word like Kodak or Xerox, these elements do not automatically signal a single source to consumers. To be registrable, they must have acquired what trademark law calls secondary meaning: the idea that consumers have come to associate that element specifically with your brand, as opposed to a general quality or feature of the product.
Secondary meaning is built over time through use, advertising, and market recognition. It is not something you can claim on day one.
Can You Trademark a Color?
Yes, but it is one of the hardest non-traditional trademarks to obtain. The landmark case is Qualitex Co. v. Jacobson Products Co. (1995), in which the Supreme Court held that color alone can serve as a trademark if it has acquired distinctiveness and does not serve a functional purpose.
The Functionality Bar
The biggest obstacle to trademarking a color is the functionality doctrine. If a color serves a functional purpose, such as indicating temperature, communicating a warning, or making a product more efficient, it cannot be trademarked. The law does not allow companies to monopolize colors that competitors need to use for practical reasons.
Tiffany blue works as a trademark because the specific shade of robin-egg blue on a jewelry box serves no functional purpose. It exists purely to identify Tiffany as the source. That is the kind of color that can be protected.
Secondary Meaning for Color Marks
Even if a color is non-functional, you still need to prove that consumers associate it exclusively with your brand. This typically requires evidence such as:
- Years of exclusive and consistent use of the color in commerce
- Significant advertising spend featuring the color as a brand identifier
- Consumer surveys showing that the color identifies your brand in the minds of buyers
- Media coverage recognizing the color as a brand symbol
Most businesses cannot meet this standard without a long and well-documented history of use. If you are an early-stage brand, the better trademark strategy is to use the color consistently now and build toward a trademark filing over time.
Can You Trademark a Sound?
Yes. Sound marks are a recognized category of non-traditional trademark. The NBC chime (three notes played in sequence) is one of the earliest and most well-known examples. The MGM lion’s roar. The Intel inside jingle. The Yahoo yodel. Each of these is a registered sound trademark. Can you hear them when you just think about them?
What Makes a Sound Trademark Work
A sound mark must be distinctive enough that consumers recognize it as a source identifier rather than background music or a generic noise. Short, arbitrary sound sequences tend to work better than long musical phrases, which are more likely to be associated with entertainment than with a specific brand.
The USPTO requires applicants to submit a description of the sound and an audio file as the specimen. The application must make clear that the sound functions as a trademark, not merely as a decorative or aesthetic element of the product.
Sounds That Cannot Be Trademarked
A sound that is functional, like the beep of a heart monitor or the click of a seatbelt, cannot be trademarked. A sound that is too common, too generic, or that consumers would not recognize as a brand identifier will also fail. The more a sound resembles something people encounter in everyday life, the harder it is to protect.
If you have built a distinctive brand element and want to know whether it qualifies for trademark protection, the trademark lawyers at Gearhart Law can assess your situation and help you build the strongest possible application. Reach out for a free half-hour consultation.
Can You Trademark a Slogan?
Yes, and slogans are the most commonly attempted non-traditional trademark. They are also the most commonly rejected. The USPTO has strict standards for what makes a slogan registrable, and many applicants are surprised to find that their tagline does not qualify.
What the USPTO Looks For in a Slogan
A slogan must do more than describe your product or inspire your customers. It must function as a brand identifier, meaning that consumers see or hear it and think of your specific company, not just a general sentiment.
Slogans that are purely motivational, descriptive, or common phrases in everyday use are routinely refused. The USPTO has rejected slogans like “You Can Do It” and “We Are Driven” because they are too generic to identify a single source. Just Do It works for Nike because decades of advertising have created an unbreakable association between that phrase and that brand.
The Secondary Meaning Problem for Slogans
Most new slogans face the same problem as color marks: they have not yet acquired secondary meaning. A slogan you coined last year, no matter how clever, is unlikely to have the consumer recognition needed to demonstrate that it functions as a trademark.
There are exceptions. If your slogan is highly distinctive, meaning it is unusual, fanciful, or has no obvious connection to your product, it may be registrable without extensive proof of secondary meaning. A trademark lawyer can evaluate where your slogan sits on the spectrum and advise on the best filing strategy.
Slogans That Cross Into Copyright
Short phrases and slogans cannot be protected by copyright. Copyright protects longer creative works, not taglines. If your slogan is not distinctive enough for trademark protection, it may not be protectable at all. This is another reason why working with a trademark attorney before you invest in a slogan matters.
How to Apply for a Non-Traditional Trademark
The trademark registration process follows the same basic steps as a standard trademark application, but with additional requirements depending on the type of mark. Here is how it works:
- Run a clearance search first. Before you file anything, a thorough trademark search tells you whether similar colors, sounds, or slogans are already in use in your industry and whether your mark has the distinctiveness needed to succeed.
- Prepare your application materials. What you need depends on the type of mark, but expect to provide a description, a specimen showing the mark in use, and, in most cases, evidence of secondary meaning such as advertising records, consumer surveys, or declarations.
- File with the USPTO. Your application is assigned to a trademark examiner who will review it for distinctiveness and functionality. Non-traditional marks receive more scrutiny than standard word marks and are more likely to receive an Office Action requiring a response.
- Respond to any Office Actions. If the examiner raises objections, you have a set period to respond. For non-traditional marks, these responses require both legal and strategic judgment.
Your Brand Is More Than a Logo. Protect All of It.
A name and a logo are just the starting point. The color your customers recognize from across the room. The sound that plays before your ad. The tagline that has followed your brand for years. These things have real commercial value and, in many cases, real legal protection.
Non-traditional trademarks are not easy to get. But if you have built genuine consumer recognition around a brand element, that recognition is an asset worth protecting before someone else gets there first.
Gearhart Law works with businesses throughout New Jersey, including Summit, Millburn, Westfield, New Brunswick, and beyond, to build trademark portfolios that go beyond the basics. Call 908.273.0700 or contact us online to book a free half-hour consultation.
Frequently Asked Questions: Non-Traditional Trademarks
1. Can you trademark a color?
Yes. A color can be registered as a non-traditional trademark if it is non-functional and has acquired secondary meaning, meaning consumers associate that specific color exclusively with your brand. Tiffany’s robin-egg blue is the most well-known example. The bar is high and typically requires years of consistent use and significant evidence of consumer recognition.
2. Can you trademark a sound?
Yes. Sound marks are a recognized category of trademark in the United States. The NBC chime, the MGM lion’s roar, and the Intel jingle are all registered sound trademarks. To qualify, the sound must be distinctive enough that consumers associate it with a specific brand rather than a general product feature or everyday noise. The USPTO requires a description and an audio file as part of the application.
3. Can you trademark a slogan?
Yes, but slogans face strict scrutiny from the USPTO. A slogan must function as a brand identifier, not just an inspirational phrase or a description of your product. Generic, motivational, or descriptive slogans are routinely refused. The more distinctive and unusual the slogan, the better its chances. A trademark lawyer can evaluate whether your tagline qualifies before you invest in an application.
4. What is secondary meaning and why does it matter for non-traditional trademarks?
Secondary meaning is the consumer association between a brand element and a specific source. For non-traditional trademarks like colors and slogans, this association does not exist automatically. You have to build it through years of consistent use, advertising, and market presence. Without secondary meaning, a color or slogan is not registrable as a trademark, no matter how closely you associate it with your brand internally.
5. What is the functionality doctrine?
The functionality doctrine prevents businesses from trademarking elements that serve a practical purpose. If a color, shape, or sound is necessary for a product to work or compete effectively, it cannot be trademarked. This protects fair competition by ensuring that no single company can monopolize something that all competitors need to use. A red traffic light, for example, cannot be trademarked because its meaning is functional and universal.
6. What is trade dress and how is it different from a trademark?
Trade dress refers to the overall visual appearance of a product or business that identifies its source, like packaging design, color scheme, store layout, or product shape. It is broader than a single trademark element and can be registered separately or alongside individual marks. Like other non-traditional trademarks, trade dress must be non-functional and must have acquired secondary meaning. It is an important part of a complete trademark strategy for businesses with a distinctive visual identity.
7. How long does it take to get a non-traditional trademark registered?
The USPTO trademark process typically takes eight to fourteen months from filing to registration for a straightforward application. Non-traditional marks often take longer because they are more likely to receive an Office Action from the examiner. Building the evidence needed to support a color or slogan application can also take time before you are ready to file. A trademark clearance search and consultation with a trademark attorney early in the process helps you understand the realistic timeline for your specific mark.
8. Do I need a trademark lawyer to apply for a non-traditional trademark?
You are not legally required to use an attorney for a U.S. trademark application if you are based in the United States. But non-traditional trademark applications are significantly more complex than standard word mark filings. The evidence requirements are stricter, Office Actions are more common, and the legal arguments around distinctiveness and functionality require real expertise. Working with an experienced trademark lawyer like Richard Gearhart gives your application the best possible chance of success.