The Canadian Intellectual Property Office is expected to announce new guidelines on “nontraditional marks” sometime this year. In their current proposed practice notice, the office would allow motion marks and holograms as two types of nontraditional marks. There is still some debate about how these marks would be depicted visually, since the limitations are not so much technological but rather procedural – the current rules require the mark to be depicted visually in a drawing.

Other nontraditional marks currently permitted in Canada include marks that protect the shape of the product, such as the Life Saver Design (at left) (Reg. No. TMA562616) registered by Kraft Foods for candy. BMW has registered the Mini Distinguishing Guise (Reg. No. TMA789872) for the shape of their iconic MINI cars. This protects the shape of the car as a distinguishing guise. Colour can be part of a trade-mark. Three-dimensional marks are also permitted in Canada.  Sound marks are allowed in the US and other jurisdictions, but Canada has a long way to go.  There are currently no sound marks registered in Canada. The MGM lion’s roar, which was the subject of a Canadian “sound mark” application in October, 1992 (Application No. 714314), is still before the Canadian trade-marks office after almost 20 years, having gone through various extensions, refusals and appeals.  Some other possibilities:

• Scent marks: a “cherry scent” is registered in the US for “synthetic lubricants.”
• Tactile marks: a velvet texture and a leather texture are registered in the US, both appearing on the surface of a wine bottle. Germany has permitted registration of the mark UNDERBERG in Braille for beverages.
• Flavour marks: an application for a trade-mark for an artificial strawberry flavor for “pharmaceutical preparations” was refused in Europe.

Related Reading: Time for Sound Marks in Canada?

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