What kind of brand can it be?
It used to be clear that a trademark was a word or a logo. Nowadays, however, new forms of trademarks are constantly emerging, such as motion trademarks. To ensure proper protection, it is important to be aware of the options available. By Ueli Grüter
At the Swiss Trademark Office, the Swiss Federal Institute of Intellectual Property (IGE), one can register eight different types of trademarks: the word mark, the mark with figurative elements (logo), the color mark, the acoustic mark (jingle), the three-dimensional mark (shape mark), the motion mark, the position mark and the hologram.
The simplest and probably most common trademark is the word mark like SWISSCOM. This mark is contrasted with the logo, which consists only of a picture, the figurative mark, such as the Puma of the sporting goods manufacturer Puma. If the word is combined with a picture, trademark lawyers speak of a combined word/figurative mark, such as the designation "Swisscom" with the corresponding logo. However, such a trademark can also be a graphically original lettering, like that of the Coca- Cola Company. A color such as "postal yellow" is actually part of the public domain and cannot, in principle, be registered as a trademark. However, if a certain color is used for years or even decades for a certain product and the public identifies the certain color with the corresponding product over time, the trademark offices allow such colors to be registered as trademarks in special cases. A well-known example of this is "postal yellow," defined as Pantone 116 C/109U, which Swiss Post has filed as a trademark for postal services. Among the newer types of trademarks is the acoustic trademark, usually the acoustic sign of a company such as the well-known jingles of Migros and Swisscom. These are not filed as sound documents, but as written musical notes. The three-dimensional trademark or shape mark has existed for a long time. With this trademark, the public immediately identifies the shape of a product or its packaging with its manufacturer without any further references. The best-known example of this is probably the Coca-Cola bottle, while Nestlé's "Nespresso capsule" is still hotly disputed. The latest brand type is the movement brand. This is usually a figurative mark that moves in use. The best-known example in Switzerland is Swisscom's new logo. When a motion mark is deposited, it must be represented in several figures in such a way that the movement can be guessed at, even if it is not actually seen. The position mark is usually a sign that actually belongs to the public domain and thus cannot be registered. However, if the mark is always placed in the same position on the product by the manufacturer, the public may, over time, directly identify the mark in that position as the mark of the corresponding company. A well-known example of this is the three stripes of Adidas on sports shoes. For practical purposes, the hologram as a brand seems to be insignificant.
As the example of the "Nespresso capsule" shows, special brand types can be worth their weight in gold. It is therefore important to know the possibilities of brand practice in order to make full use of them.
Ueli Grüter, LL.M., Attorney at Law, Grüter Schneider & Partner AG, Zurich/Lucerne, is a lecturer in communications law at the Lucerne University of Applied Sciences and Arts and co-editor of the book Kommunikationsrecht.ch. He comments once a month in Werbewoche on practical legal issues in advertising. Questions can be sent to the Werbewoche legal expert at [email protected].
