Non-Traditional Trademarks and Inherently Valuable Expression

Abstract

Trademark laws currently allow companies to obtain trademark rights in product configurations, colors, scents, sounds, flavors, textures, and other “non-traditional” marks that identify and distinguish the source of goods or services. This chapter argues that non-traditional trademarks convey expression protected by the right to freedom of expression in constitutions, human rights treaties, and statutes. Not only do distinctive non-traditional marks communicate source-identifying information, but these product attributes may also intrinsically convey information, ideas, or other messages unrelated to the trademark owner. Therefore trademark laws regulating this expression must have a sufficient justification, and governments should repeal or revise laws protecting non-traditional marks when they do not directly further trademark law’s goals and harm free expression. Nations should refuse to register non-traditional marks that expressed inherently valuable messages unrelated to source-identification before they were adopted or used as marks, or only grant such marks narrow protection.