Understanding Non‑Traditional Trade Marks: Colour, Motion, 3‑D & Holograms

Modern branding involves more than just words and logos. Companies increasingly seek trademark protection for non‑traditional signs – single colours or colour combinations, the shape of a product or its packaging, animations, and even holograms. Registering such marks allows owners to control exclusive use and ensures consumers can identify the origin of the goods or services. However, the threshold for registration is high, and applicants must follow strict rules on how the mark is represented and must demonstrate that the sign functions as an indicator of origin. This article explains the key requirements under European Union (EU) law, highlights important case‑law and international instruments, and answers common questions about protecting these innovative trade marks.

Legal framework for non‑traditional trade marks

International and EU foundations

Under the WTO TRIPS Agreement, any sign capable of distinguishing the goods or services of one undertaking from those of other undertakings may constitute a trademark. The agreement allows member states to require that signs be visually perceptible, but does not limit the subject matter to words or devices. The Singapore Treaty on the Law of Trademarks, adopted under WIPO auspices, provides a multilateral framework for representing hologram, motion, colour, and other non‑traditional marks and leaves it to contracting parties to develop detailed standards. WIPO notes that three‑dimensional designs, colours per se, moving images, and specific sounds or smells are increasingly used in marketing and that modern trademark law is open to these signs. The Singapore Treaty entered into force in March 2009, and WIPO’s Standing Committee on Trademarks has developed “areas of convergence” for representing such marks.

At the EU level, the EU Trade Mark Regulation (EUTMR) and the Commission Implementing Regulation (EU) 2018/626 (EUTMIR) set formal requirements. Since 2017, the EU has abandoned the requirement of graphic representation; instead, the representation must enable competent authorities and the public to determine the clear and precise subject matter of protection. Article 3(3) EUTMIR lists specific rules for each type of non‑traditional mark. These rules are complemented by EUIPO Guidelines and by Common Practices agreed within the European Union Intellectual Property Network (EUIPN).

The need for distinctiveness

Regardless of the type of sign, an EU trade mark must be capable of distinguishing the goods or services of one undertaking from those of others. For non‑traditional signs, the Court of Justice emphasises that the general interest in keeping certain signs available for everyone must be considered. In Libertel (C‑104/01), the Court observed that when assessing the potential distinctiveness of a colour mark, regard must be had to the public interest in not unduly restricting the availability of colours for other traders. It pointed out that consumers are not accustomed to identifying the origin of goods from a colour alone and that a colour per se is rarely inherently distinctive. Distinctiveness without prior use is conceivable only in exceptional circumstances, especially where the number of goods or services is very restricted. Applicants may therefore need to show acquired distinctiveness through extensive use.

Colour marks

Colour marks cover single colours or combinations of colours without contours. Article 3(3)(f) EUTMIR distinguishes between these two situations. For single colour marks, the applicant must submit a reproduction of the colour and provide an internationally recognised colour code. For colour combinations, the reproduction must show the systematic arrangement of the colours “in a uniform and predetermined manner” and must also identify the colours with a colour code. A description detailing the arrangement may be added.

The EUIPO Guidelines elaborate that colour marks are either single colours without contours or combinations of colours without contours. A colour combination must be systematically arranged; a mere juxtaposition of colours or a reference to colours “in every conceivable form” does not meet the standards of precision and uniformity. The Blau/Gelb case stressed that the representation must be precise; otherwise, the scope of protection is unclear. EUIPO therefore requires that voluntary descriptions accord with the representation and must not extend beyond it.

Shape or 3‑D marks

Shape marks (3‑D marks) consist of, or extend to, a three‑dimensional shape of goods, packaging, or containers. Article 3(3)(c) EUTMIR requires that shape marks be represented by either a graphic reproduction (including computer‑generated imaging) or a photographic reproduction. When filing on paper, up to six different views may be provided. EUIPO Guidelines explain that multiple views may be submitted and that the representation defines the subject matter of protection; descriptions are optional. Acceptable electronic file formats include JPEG, OBJ, STL or X3D (according to the EUIPO technical specifications).

Assessing distinctiveness of shape marks

The EUIPN Common Practice CP9 sets out criteria for assessing shape marks containing verbal or figurative elements when the shape itself is not distinctive. If a non‑distinctive shape incorporates a distinctive element, the sign may be distinctive provided the element is clearly identifiable. Factors such as size or proportion, colour contrast, and position of the additional elements influence perception. Adding a single colour to a non‑distinctive shape will not normally make the sign distinctive; consumers may interpret it merely as decoration. However, an uncommon arrangement of colours that leaves a memorable overall impression can render the sign distinctive. When multiple factors are combined, the overall impression of the sign determines distinctiveness.

Applicants should therefore consider adding distinctive words or figurative elements to the shape and ensure these elements are prominent enough. Evidence of acquired distinctiveness may be necessary when the shape corresponds closely to the goods themselves.

Motion marks

A motion mark is a sign that consists of, or extends to, movement or a change in the position of the elements of the mark. Article 3(3)(h) EUTMIR requires that motion marks be represented by a video file or by a series of sequential still images showing the movement; when still images are used, they may be numbered and accompanied by a description explaining the sequence. The EUIPO Guidelines clarify that motion marks include signs capable of showing a change in position, a change of colour, or replacement of elements. The definition covers signs with word or figurative elements, such as logos or slogans, as long as the sign as a whole displays movement. Motion marks do not include sound (sound marks are covered separately).

Because there is little case‑law, the general criteria for assessing distinctiveness apply. The mark will be distinctive if it can identify the goods or services as originating from a particular undertaking, considering the perception of the relevant public. EUIPO’s Common Practice CP11 provides examples of motion marks that are considered distinctive and non‑distinctive. Accepted examples include a changing logo that replaces a slogan with another word or a cube that changes colour in a sequence. Non‑acceptable examples include a descriptive word that merely moves across the screen or a complex street‑view animation that is unlikely to be perceived as a trade mark. The sign should be simple enough to leave a lasting impression and must not merely show an advertisement or a descriptive movement.

When filing a motion mark, the applicant must submit the video file (usually MP4) or the series of images via the EUIPO e‑filing system. A description may help explain the duration or order of frames, but the representation prevails over the description. For international registrations under the Madrid Protocol, applicants should check whether the International Bureau accepts video files; currently video representations are not permitted in Madrid applications, so applicants may need to rely on sequential images.

Hologram marks

Hologram marks consist of elements with holographic characteristics. Article 3(3)(j) EUTMIR states that a hologram mark must be represented by either a video file or a graphic or photographic reproduction showing the views necessary to identify the holographic effect. The EUIPO guidelines specify technical requirements: video files must be in MP4 format and may not exceed 20 MB; if the representation is composed of images, the number of views is unlimited as long as all views fit into a single JPEG file or on one A4 sheet. The office does not accept any mark description or indication of colour for hologram marks; the representation alone defines the subject matter. Applicants should ensure that all relevant angles of the hologram are included and that the holographic effect is clear when reproduced.

Because hologram marks are new, there is little examination practice. Applicants must ensure the sign functions as a trademark and is not merely decorative. Evidence of acquired distinctiveness may be necessary.

Conclusion

Non‑traditional trade marks offer innovative ways to distinguish goods and services in increasingly saturated markets. Colours, three‑dimensional shapes, animated signs, and holograms can all function as trade marks, but they must meet stringent requirements. Applicants must provide precise representations – using colour codes, multiple views, videos or sequential images – and, in most cases, must demonstrate that the sign has acquired distinctiveness among the relevant public. EU and international instruments such as the EUTMIR and the Singapore Treaty provide a framework for protecting these marks. By understanding the legal requirements and planning their branding strategy accordingly, businesses can secure valuable rights in non‑traditional signs and strengthen their market position.