Sensory Marks II

 A few weeks ago, I posted about sensory marks, which are trademarks (or other marks like service marks) that aren’t words or still images. At the end, I asked about texture marks, proposing that they, too, were important ways to identify goods and services in commerce.

Well, after speaking with the experts at the head PTRC office, I learned that I was not wrong… In part.

Texture marks do exist! My error was my example: AstroTurf wouldn’t qualify for a sensory mark. The feel of AstroTurf is part of its function. While that new, more authentic texture was part of the product's brand identification, a mark cannot be anything that is integral to a product's function (or directly related to how it is manufactured).

Extant texture marks—better described as touch or tactile when searching the TESS—are few. Among those, some used “touch” or “texture” to describe a different sensory experience, like the texture of a sound from a musical chord, or a sound created when using a touch tone telephone (service mark 3394190). After filtering out the unrelated results, there were 12 touch marks, three of which were registered, and only one still live.

List of 18 results.

 

What kind of textures have been included in sensory mark applications?

Most concerned the unique tag or label on a product, such as the frayed edge of a product description card or a leather wine bottle wrapping. Others specified a product’s distinctive texture, the engraving on a handle or a lipstick compared to cashmere material.

I was most interested in three marks that consisted of vibration patterns from a credit card company. None were ever officially registered and all are now dead, but the tactile nature of a vibration pattern can be very distinct and become associated with a product or a service.

The one live, registered touch mark is for faucet aerators. Not what I expected; it’s for the feathered, rubbery feel on the aerator’s outflow end. Read all about the product and see a specimen for it in the full set of status information and related documents.

Sensory Marks

Something that really interests me are trademarks that aren’t words or images: sensory marks, IP in the form of sounds and smells. These sounds and scents are so closely tied to a brand that they can serve as an identifier without supporting words or images. Some sounds marks are fairly easy to imagine, but resist the temptation to think of jingles or advertisement songs. Those might be copyrighted, but aren’t marks. It’s a simpler and more pervasive sound: the roaring lion for MGM/UA Entertainment, NBC’s 3-note chime.  Most of you probably heard those in your mind as you read.

And sensory marks are more numerous than I imagined! I performed a quick search in TESS free-form mode to get an idea of how many sensory marks might exist. Ignoring status like live/dead or registered, my first set of results was based on searching the mark drawing code 6, which is marks where a drawing is impossible, like sounds or scents. The search term “6”[MD] resulted in 909 records.

After several minutes of skimming through sensory marks, I decided I was really interested in fragrance marks. Far fewer were registered or applied for than sounds. How could I separate the two and exclude sounds from search results?

I tried a few different strategies, including searching the now-defunct classification code for sensory marks, and read a large portion of the TESS Help documents, to help figure out the best search term combination. Ultimately, I found that my first instinct to use the mark drawing code field formed the best foundation, and then filtered those results through their descriptive statements.

First I searched “6”[MD] AND smell[DE], but immediately knew finding only 2 marks was wrong. I selected the term smell because I noticed it in a mark's description, but  "smell" clearly was not a common choice of vocabulary. I adjusted to “6”[MD] AND (scent OR smell)[DE] for a total of 44 results.

I was slightly disappointed when I read through the various marks found. Either fragrances are severely underutilized as branding and IP tools, or I wildly overestimated their usefulness. Among those 44 results, only a handful were ever registered, and even fewer are still in use. I narrowed down to those 14 by searching (“6”[MD] AND (scent or smell)[DE]) AND live[LD]. Only one mark was familiar. (This is Play-Doh, right?)

The world needs more sensory marks. Especially scent marks. How often do you open a product and immediately register its unique smell, that isn’t directly related to its function or manufacturing? For example, if a group of Texans[1] was asked to smell a sampling of Coca-Cola, Pepsi, and Dr. Pepper, I bet some would be able to pick out Dr. Pepper.

What about textures? Like the feel of AstroTurf, which was a ground-breaking turf technology.

What scent or texture mark would you propose?

 

*DISCLAIMER: References to particular products, patents, trademarks, service marks, services, companies and/or organizations in this post are for illustrative or educational purposes only and do not constitute or imply endorsement by the Kelley Center, Fondren Library, Rice University or any of its affiliates.*

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[1] Consisting of non-vulnerable, consenting adults fully briefed on their rights in participating in a study.