What Can You Trademark? 8 Surprising Brand Assets Beyond Names and Logos

A company can spend years making a colour, sound, package or digital animation recognisable, then discover that nobody considered whether the asset could be protected.

The commercial risk is easy to miss. If customers recognise a feature as part of your brand but your trademark portfolio covers only the name and logo, copycats may have more room to imitate the customer experience. On the other hand, filing weak applications for ordinary colours, shapes or patterns can waste budget and create false confidence.

The right question is not simply whether an asset is unusual.

The real test is whether customers perceive the feature as identifying one commercial source, rather than as decoration, a technical solution or an ordinary part of the product.

In the EU, potential trademarks include words, logos, colours, sounds, shapes, positions, patterns, movements, multimedia signs and holograms. The European Union Intellectual Property Office (EUIPO) explains the recognised trademark formats, while the detailed representation requirements appear in the EU Trade Mark Implementing Regulation.

This article focuses on eight less conventional brand assets and what founders, marketing teams and in-house legal teams should check before filing.

Eight brand assets that may function as trademarks

An unusual feature still has to work as a brand

Trademark law can accommodate many types of signs. Consumers and trademark examiners are harder to impress.

Before filing, ask five practical questions:

• Does the feature help customers distinguish your goods or services from competitors?

• Is it distinctive for the specific goods or services you want to protect?

• Can you define the protected feature clearly and precisely?

• Is the feature technical, functional or inherent to the product?

• Would customers see it as branding, or simply as decoration?

Protection is also territorial and limited to the goods and services listed in the application. Registering a sound for entertainment services does not create ownership of that sound in every industry or country.

This distinction matters when budgeting. A carefully selected non-traditional mark may strengthen a valuable brand asset. A speculative filing for an ordinary feature may lead to refusal, extra evidence costs and limited enforcement value.

1. A sound can be registered when customers hear it as a brand

Yes. A sound can be registered as an EU trademark if it is distinctive and represented in an accepted format, such as an audio file.

Potential sound marks include:

• Advertising jingles

• Startup or shutdown sounds

• Spoken phrases or audio sequences

• Sounds used repeatedly in apps or devices

• Audio signatures used in podcasts, videos or customer support

A memorable US example is Lucasfilm’s registration covering Darth Vader’s breathing. The registration describes rhythmic mechanical human breathing created through a scuba-tank regulator.

This is a US example. It does not establish that the same sign would be registrable in the EU, and it does not give Lucasfilm ownership of heavy breathing in every context. The registration is tied to the sign, territory, goods and services identified in the US record.

A commonplace notification beep, alarm or functional warning may be refused because customers are unlikely to treat it as identifying one company. A business must also check ownership of the underlying recording, composition and performance.

Practical question: If customers heard the sound without seeing your name or interface, would a meaningful proportion of them connect it with your business?

2. A colour can be protected, but evidence often decides the outcome

A single colour or colour combination may be registered, but obtaining exclusive rights in colour alone is difficult.

Trademark offices are cautious because colours are limited and competitors may have legitimate reasons to use them. A single colour is therefore often registrable only after the applicant proves acquired distinctiveness.

Acquired distinctiveness means that a feature may not have started as a trademark, but customers have learned through extensive use to recognise it as identifying one business.

Relevant evidence can include:

• Long and consistent use of the colour

• Market share and sales figures

• Advertising that actively teaches customers to recognise the colour

• Geographic coverage across the relevant territory

• Independent media coverage

• Reliable consumer-recognition evidence

A colour combination can sometimes be easier to define than a single colour, but the filing must still show the arrangement precisely. A vague claim to two colours used in any conceivable form may leave competitors unable to understand what is protected.

Practical question: Is the colour used as a stable source identifier, or is it simply part of a visual palette that changes with each campaign or product season?

If the visual identity is still evolving, a word mark or a distinctive logo may be the better filing priority. Abrande’s article on when it is worth protecting a logo explains how to distinguish a commercially useful logo filing from a narrow registration that adds little protection.

3. A specific placement can be more protectable than a colour in isolation

A position mark protects a sign placed in a specific and consistently defined location on a product.

The best-known European example is Christian Louboutin’s red sole. In Case C-163/16, the Court of Justice of the European Union considered a mark consisting of a specified red colour applied to the sole of a high-heeled shoe.

The Court held that the sign was not composed exclusively of a shape merely because its position involved the shape of the product. The claim concerned the application of the colour to a particular part of the shoe, rather than protection for the shape of the sole itself.

Commercial consequence: Louboutin did not receive ownership of red shoes, red soles in every possible context or the colour red generally. The defined position was central to the claim.

This can matter for products where a feature always appears in the same place, such as:

• A coloured tab on a particular part of a garment

• A stripe positioned consistently on a shoe

• A symbol placed in the same location on every device

• A contrasting panel on one defined section of packaging

Practical question: Do customers recognise the feature because of the colour itself, or because that colour or design always appears in one specific place?

4. Product and packaging shapes must stand apart from normal market design

A product or packaging shape may be registered, but an attractive or unusual appearance is not automatically enough.

Customers must be likely to perceive the shape itself as indicating commercial origin. The shape may also be excluded if it results from the nature of the goods, is necessary to achieve a technical result or gives substantial value to the goods.

Two bottle cases show how demanding this can be.

In Case C-445/13 P, Voss failed to overturn the invalidation of its cylindrical bottle mark. The courts concluded that the bottle did not depart sufficiently from the norms of the relevant sector.

Coca-Cola also failed to register a newer smooth contour bottle without fluting. In Case T-411/14, the General Court found that the shape lacked inherent distinctiveness. The evidence also failed to establish acquired distinctiveness throughout the relevant EU territory.

The practical point is not that bottle shapes can never be protected. It is that being visually appealing, premium or different to a design team does not prove that consumers see the shape alone as identifying one company.

Run this test: Remove the label, brand name and logo. Would customers still recognise who supplied the product?

Shape-mark protection should also be compared with registered design rights, copyright and, where technical innovation is involved, patent protection. The strongest strategy may use more than one right rather than forcing every product feature into a trademark filing.

5. A repeated pattern may be seen as decoration rather than origin

Repeated patterns can function as trademarks, but only when customers treat the pattern as a brand indicator.

This distinction was central to the Birkenstock litigation. In Case C-26/17 P, the Court of Justice upheld the refusal of Birkenstock’s repeated wavy-line pattern for many of the goods claimed.

Because the sign could be applied repeatedly to a surface, consumers were likely to perceive it as a surface pattern rather than as an indication that the goods came from one particular company.

That risk applies to patterns used on:

• Fabric and clothing

• Shoe soles

• Bags and accessories

• Wallpaper and interior products

• Packaging backgrounds

• Digital interfaces

Consistent use can help, but use alone may not be enough. Advertising and product storytelling may need to teach customers that the pattern signifies the company rather than merely decorating the product.

Practical question: When customers describe the pattern, do they call it your pattern, or simply a geometric, floral, wavy or decorative design?

6. An animated introduction can be a trademark, not just a logo in motion

20th Century Fox’s animated film introduction shows how a moving sequence can function as a brand asset in its own right. Think of the monumental lettering, sweeping searchlights and changing camera angle: the introduction presents the studio’s identity through movement, not just a static image.

The studio obtained US Registration No. 1,928,423 on 17 October 1995. Its description identifies a computer-generated sequence showing the central structure from several angles, as if a camera were moving around it. Four still images represent the sequence in the filing. The registration covers specified film and recorded-entertainment goods.

The distinction matters: this example concerns the visual sequence, not simply the studio name, a static logo or the accompanying fanfare. It illustrates why an animated identity deserves its own review rather than being treated as automatically covered by a logo registration.

This is a US registration, not an EU precedent. For an EU filing, the EUIPO distinguishes motion marks from multimedia marks: motion marks concern movement or a change in the position of elements, while multimedia marks combine images and sound. The sign must meet the applicable representation and distinctiveness requirements.

Commercial takeaway: You do not need a Hollywood-sized production budget to apply the lesson. If your business repeatedly uses an animated logo at the start of product videos, in an app introduction or at the end of advertising, consider whether the sequence is a consistent source identifier worth assessing separately. A routine fade or generic loading animation is a much weaker candidate than a distinctive, stable brand sequence.

Ownership can become a separate problem. If an agency, freelancer or software contractor created the animation, the company should confirm that the relevant intellectual property rights were assigned correctly.

Practical question: Is the movement itself part of what customers recognise, or would any animation of the same logo do the job?

AI tools can help inventory digital assets and prepare draft descriptions, but human review is still important when deciding what to file and who owns it. Abrande discusses that wider risk in Can ChatGPT or Claude File a Trademark for You?

7. A store layout can qualify when the environment identifies the business

A representation of a retail layout can potentially function as a trademark for relevant services.

In Case C-421/13, the Court of Justice considered Apple’s representation of a flagship-store layout. The Court held that a drawing showing the arrangement of a retail space could constitute a sign and could potentially distinguish services.

The judgment did not make every Apple store automatically protected. It established that this type of sign could, in principle, qualify for registration if it met the normal requirements, including distinctiveness.

This route is most relevant when a business deliberately repeats a recognisable spatial experience across locations. Ordinary shelving, counters, product tables or lighting will rarely be enough.

Potentially relevant features may include:

• A distinctive and repeated arrangement of space

• Unusual customer pathways

• Recognisable display structures

• A stable combination of spatial features

• A layout customers connect with one retailer or service provider

Practical question: If the external sign and logos were removed, would customers entering the space still recognise the business?

8. Scent marks remain exceptionally difficult in the EU

Scent marks have been accepted in limited circumstances, including a historical European registration for the smell of fresh-cut grass on tennis balls. That does not make scent protection a straightforward option for an EU business today.

In its decision of 11 February 1999, R 156/1998-2, OHIM’s Second Board of Appeal accepted the description “the smell of fresh cut grass” for tennis balls, allowing Senta Aromatic Marketing’s scent mark to proceed to registration. As Dennemeyer explains in its discussion of scent trademarks, the Board considered the description sufficiently clear and unambiguous in that context. The registration later lapsed through non-renewal.

Why it matters: The example makes the idea of a scent mark tangible: an unexpected sensory feature applied to an everyday product. But it is a historical acceptance, not an active registration or a reliable template for a new EU application.

A well-known US example is Hasbro’s Play-Doh scent registration. The US record describes a sweet, slightly musky, vanilla-like fragrance with cherry overtones and the natural smell of salted wheat-based dough.

This is a US example. It should not be treated as evidence that the same scent could be registered as an EU trademark.

In the later Sieckmann judgment, Case C-273/00, the Court found that a chemical formula, written description, physical sample or combination of those methods did not adequately represent the smell being claimed.

The EU later removed the absolute requirement that a trademark be represented graphically. However, the sign must still be represented on the register in a way that is clear, precise, self-contained, easily accessible, intelligible, durable and objective.

There is currently no straightforward scent equivalent to uploading an audio file for a sound mark or a video file for a motion mark. A physical sample may change over time, a written description can be subjective, and a chemical formula describes a substance rather than necessarily communicating the smell as consumers experience it.

Practical consequence: An EU business should not build its core protection strategy around a scent application without specialist advice. Packaging, names, logos, registered designs, copyright, confidentiality and technical rights may offer more workable protection.

Run a non-traditional trademark audit before deciding what to file

Your most valuable overlooked asset is likely to be a feature customers encounter repeatedly. Start with an inventory rather than an application form.

1. List what customers recognise without the name. Include sounds, colours, packaging, product features, patterns, animations and physical environments.

2. Check consistency. A feature that changes every few months is less likely to function as a stable source identifier.

3. Compare the market. Identify whether competitors use similar features as standard industry design.

4. Separate branding from function. Ask whether the feature is needed to make the product work or achieve a technical result.

5. Check ownership. Confirm who designed, recorded or developed the asset and whether the company received the necessary rights.

6. Identify commercial territories. Protection must match the countries where the asset creates value or risk.

7. Define the goods and services. Trademark rights do not protect an asset in the abstract.

8. Compare other IP rights. A design, copyright or patent may offer a better or complementary route.

9. Review earlier rights. Non-traditional signs still require clearance before filing.

10. Prioritise the portfolio. Protect the assets that customers recognise and competitors have a commercial reason to copy.

Do not confuse class selection with clearance. Classification determines which goods and services the filing covers. Clearance assesses whether earlier rights may block the application or create conflict. Abrande’s Nice Classification guide for founders explains how to align the specification with the real business.

For international expansion, filing timing also matters. A feature used in one country is not automatically protected everywhere. See First-to-File vs First-to-Use for the practical differences between markets.

Clearance should come before a non-traditional trademark filing

It is tempting to assume that an unusual sign must be available. That is not a safe assumption.

A clearance review should consider:

• Earlier trademarks for identical or similar features

• The goods, services and territories covered by those rights

• Whether the proposed sign includes third-party music, artwork or recordings

• Whether a product feature copies protected packaging or design elements

• Whether contractual ownership is complete

• Whether the sign is strong enough to justify the filing cost

A preliminary screen can start with Abrande’s free trademark clearance search. For broader launch planning, see How Founders Can Avoid Trademark Conflicts Before Launching Internationally.

A search result is not a guarantee of availability. The commercial assessment still needs to consider similarity, distinctiveness, ownership, territory and the goods or services involved.

Frequently asked questions

Can any colour be trademarked?

No. A colour must be distinctive for specified goods or services. A single colour will commonly require substantial evidence that relevant consumers associate it with one commercial source.

Can a company trademark a sound?

Yes. The EU permits sound marks, but the sound must distinguish the applicant’s goods or services. Commonplace, descriptive or functional sounds may be refused.

Can a smell be registered as a trademark in the EU?

EU trademark law is not expressly limited to visible or audible signs. In practice, however, representing a scent clearly, precisely, durably and objectively remains a major barrier. US scent registrations should not be treated as EU precedents.

Can a product shape be trademarked?

Potentially. The shape must function as a source identifier and avoid the exclusions applying to certain natural, technically necessary or value-giving product characteristics. A shape that looks different to a designer may still be too ordinary from a consumer’s perspective.

Does an unusual trademark give complete control over the asset?

No. Trademark rights are territorial and tied to the registered representation and specified goods or services. A red-sole registration, for example, does not give its owner control over the colour red in every position, product category or country.

Should a startup file its name or non-traditional mark first?

For most early-stage businesses, the distinctive company or product name remains the priority because it is usually the asset customers use most directly. Non-traditional marks often become more relevant once the feature is used consistently, has measurable recognition and is commercially worth copying.

Protect the brand features customers actually remember

Your most valuable trademark may not be your company name. It may be a sound customers hear every day, a pattern repeated across products or a packaging shape that remains recognisable when the label is removed.

That does not mean every memorable feature should be filed. The strongest candidates combine consistent use, customer recognition, precise definition, clear ownership and real commercial value.

Abrande can help identify which names, logos and non-traditional brand assets are worth clearing and protecting, and which are unlikely to justify the filing cost. You can also use Abrande’s brand checker as an initial screening step.

Commercial takeaway: Audit what customers recognise, then protect selectively. A focused portfolio built around real customer recognition is usually more valuable than a long list of speculative filings.

This article is for general informational purposes only and does not constitute legal advice. Trademark outcomes depend on the sign, goods and services, evidence, territory and earlier rights involved.