The protection of the brands, labels or product names a company uses for its goods or services is without doubt a desirable objective. “Products and brands are not only consumed, but experienced, day by day, with our five senses,” said a well-known brand expert. He is right. This particularly applies to the reference to the comprehensive perception of brands with all our senses. This leads to the question what can actually be protected as a brand and therefore included in the trademark register.
There are not only the word and figurative marks that we can see and hear, but also totally different types of marks that are generally considered protectable by the law. First of all, there are the sound marks, the subject of protection of which is the visually imperceptible sound. In this regard, it is necessary to claim the protection for a specific acoustic event, e.g. a specific melody or also a specific noise. Many companies use so-called acoustic patterns in their advertising, e.g. as so-called “jingle”. The sound mark of the company Intel should be especially well-known; its melody always appears in direct connection with the spoken mark “Intel” in advertisements. However, the olfactory sense is also taken into account in brand protection. With their olfactory sense, humans detect aromatic substances or fragrances as scents via the olfactory cells in their nose. Humans can perceive and distinguish more than 10,000 different scent qualities. Accordingly, olfactory marks are generally recognised. However, the problem is how to sufficiently describe the mark in order to monopolise it for one individual owner. There are no classification systems for scents as there are for colours, so that the possibility to register olfactory marks currently fails essentially due to practical obstacles. It is not quite as difficult for tactile marks, i.e. marks that can be perceived by the human sense of touch. It is at least possible to indirectly present them as graphic images. The Federal Supreme Court (BGH) considered it sufficient when the relevant qualities perceived by the sense of touch of the object triggering the (haptic) perception process are sufficiently described in objective terms. As a possible example, the BGH states a specific surface structure of an item that consists of depressions and can be perceived by the sense of touch, by stating the proportions of the depressions and elevations as well as their arrangement.
Granted, there are certainly not many companies who have to deal with olfactory and tactile marks. However, this is probably different with positional marks. Positional marks are characterised by the special way of attaching or arranging a mark on goods or elements of goods, i.e. by their special position. If a specific mark is always attached on the same place and in the same form and size, this can generally justify brand protection. Positional marks entered in the register are, for example, selvedges or distinctive markings of water hoses. Stripes on trainers or other shoes may also be protected as a positional mark if they are arranged in a certain way. The Federal Patent Court decided only recently that positional marks are not only attached to goods or elements of goods, but also come into question for services, e.g. for advertising measures, on work clothes, brochures, business documents and invoices. Therefore, if a specific mark is attached on the work clothes of employees always on the same place, or on business documents and business cards, this can also generally justify brand protection. Last but not least, the so-called movement marks have to be stated. The subject matter of movement marks is a specific movement pattern that can be presented as sequence of images, such as the opening of a convertible roof. Therefore, specific functions of products can also be protected indirectly if they entail such a (special) movement pattern.
Conclusion: Whoever wants to communicate with their customers in a particularly pragmatic manner in order to present the origin, quality and characteristics of their goods or services most effectively may rely on different types of marks. At any rate, creativity is hardly limited by the law.