Posts Tagged ‘non-traditional trademarks’

Wrigley Field is the second oldest active ballpark in the major leagues. It is famous for its character, including the ivy wall in the outfield. Balls actually can get lost in it. In fact, last night in Game 3 of the National League Championship Series (NLCS), a ball hit by Met Wilmer Flores was lost in the ivy and ruled a “ground rule double.”

Does the ivy wall function as a trademark? Does it identify the services of the team? If someone else built a baseball stadium with a brick outfield wall covered in ivy, could it damage the Cubs’ brand or be confused as licensed by or endorsed by the team? I think there is a very good possibility that it is a trademark. The ivy wall is certainly (and uniquely in the sport of baseball) associated with Wrigley Field and the Chicago Cubs.

Nontraditional trademarks can cover just about anything. The red soles of Louboutin shoes. The KISS band member’s makeup. Lighting configurations. Sounds. And much more, including the blue turf field of Boise State football.

photo via

PS – the Cubs are playing the Mets in the NLCS this year, and I also think that the Mets’ home run apple could be registered – even more easily than the ivy wall since it is easier to identify and describe what is being protected.

I can’t think of another brand with more than two iconic trademarks. Coca-cola has three!

  • The bottle shape
  • The cursive Coca-Cola script
  • The ribbon that goes under the script and now stands alone on some bottling.

A recent Wired article notes that Coca-Cola’s Beautiful New Logo Is No Logo at All. And they are right. A simple swirling ribbon stripe is all that a can of soda needs to tell you who made it.

Image from WIRED at

In this age where  brands generally try to create louder and louder marketing, a few iconic brands have the luxury of going in the opposite direction — sleek and simple. Coke is at or near the top of that list.

The Coke ribbon is a registered trademark with the USPTO, of course (click marks for USPTO records):

  • Trademark image– registered for soft drinks
  • Mark Image– registered since 1928 for beverages
  • Trademark image– registered since 1960

Earlier this week I wrote about a host of new Apple Watch related trademark filings from Apple, including TAPTIC ENGINE.  The New York Times reviewed the watch this week and I was quite intrigued by this statement: “The Apple Watch’s most ingenious feature is its “taptic engine,” which alerts you to different digital notifications by silently tapping out one of several distinct patterns on your wrist.”

The author, Farhad Manjoo, went on to explain how this works in more detail:

“As you learn the taps over time, you will begin to register some of them almost subconsciously: incoming phone calls and alarms feel throbbing and insistent, a text feels like a gentle massage from a friendly bumblebee, and a coming calendar appointment is like the persistent pluck of a harp. After a few days, I began to get snippets of information from the digital world without having to look at the screen — or, if I had to look, I glanced for a few seconds rather than minutes.”

Could the sensation of the tapping patterns themselves function as trademarks? It is possible that other watches could use vibrations (assuming there are no patent issues). But if Apple’s sensation for, let’s say, receiving a new email, be unique enough to function to the user of the watch to indicate the source (i.e. brand) of the watch and/or software?

“Touch” or texture marks are registrable at the USPTO (for example, the Crown Royal registration for a purple cloth pouch bag, or the expired registration for a leather wrapping around a wine bottle). Sounds can be registered. Trademarks can be three dimensional, whether they are product shapes (Legos for example), or something else. Anything that serves to differentiate the source of the product, even goats on a roof!

Do you think Apple’s Taptic Engine vibration patterns are registrable?  Are they purely functional? Perhaps they can be registered if acquired distinctiveness is shown?

Last month, Apple received three sound mark registrations from the USPTO for sounds made by Siri.

U.S. Trademark Registration No. 4689365 is for “a synthesized bell tone playing a C#5 sixteenth note, followed by another C#5 sixteenth note” for use with computer hardware good in Class 9.

U.S. Trademark Registration No. 4689044 is for the same sound, “a synthesized bell tone playing a C#5 sixteenth note, followed by another C#5 sixteenth note,” but for use with computer services. I believe this is the sound Siri makes when activated or turned on.

U.S. Trademark Registration No. 4689043 is for “a synthesized bell tone playing a G#5 sixteenth note, followed by another G#5 sixteenth note.” I believe this is the sound makes at the end of a receiving voice request.

For more on the Siri sounds, see “The iPhone’s UI Sounds” from Beyond the Beep.

Apple also owns a registration for the sound of “a synthesizer playing a slightly flat, by approximately 30 cents, G flat/F sharp major chord” in Registration No. 4257783. That is the sound made when an Apple computer is turned on.

Other nontraditional Apple trademarks include the design of an Apple Store, charger icon, the shape of the iPhone, the shape of the iMac, the shape of a mouse, and more.


image from

Trademark Registration 4641345, is a sound mark for a commercial jingle. It was issued to Nationwide insurance in November of 2014, and consists of “a vocalist singing the words, “NATIONWIDE IS ON YOUR SIDE” accompanied by the seven musical notes. E, G, G, G, A, C, C. In the first measure, vocalist sings “NA” [E5 Eighth Note] “TION” [G4 Eighth Note] “WIDE” [G4 Eighth Note] “IS” [G4 Eighth Note] “ON” [A4 Eighth Note] “YOUR” [C5 Quarter Note] “SIDE” [C5 Eighth Note tied to C5 Dotted Half Note of the second measure] followed by a quarter-note rest.

A recent commercial for Nationwide uses and builds upon the registered jingle brilliantly. Broncos Quarterback Peyton Manning humms the tune, and goes through practice and his routine (ice bath, driving home, eating a meal) using the tune to utter several other phrases… 50 Omaha said ‘hut’…. losing feeling in my toes…. nothing beats that new car smell.  The ad reinforces the jingle. Which makes it even catchier, even more likely to get stuck in your head.

And at the end of ad, Manning does turn on the television to find that a Nationwide ad is playing. And then the original jingle  – Nationwide is on your side – is heard through the TV. Brilliant.

The ad debuted a few weeks ago. According to an article in the Denver Business Journal, “From a paid-media perspective, it’s one of our single most effective ads ever,” [senior vice president for brand marketing Jennifer Hanley said. “From a social-media perspective, ‘Jingle’ is by far the most talked about ads in the history of Nationwide.” No wonder. The ad is fun and catchy. And uses a nontraditional trademark in a very effective manner.

Article: Peyton Manning Sings About Losing Feeling in His Toes (Denver Post)

© 2015 Erik M. Pelton & Associates, PLLC. The nontraditional trademark lawyers.®