What comes to mind when you think of a brand? Most likely, it is a logo like the vibrant Safaricom “S” or a catchy name like “Tusker.” These are commonly referred to as traditional trademarks. Things you can see and read that help you identify a product or service. But what if a brand could be recognized by what we hear, smell, or even feel? This is the world of non-traditional trademarks.
What Exactly is a Non-Traditional Trademark?
Imagine you’re watching a show, and just before it begins, you hear a distinct “ta-dum!” sound. You instantly know it is Netflix. That “ta-dum” is not a logo, it is a sound, and it is a perfect example of a non-traditional trademark.
Unlike traditional trademarks that rely on visuals such as logos, words, colours or images, non-traditional trademarks appeal to other senses to distinguish a brand. These trademarks can take many forms-
- Sound Marks-These are unique sounds that tell you who’s behind a product or service. Besides Netflix’s “ta-dum,” consider the distinct jingle of a popular Kenyan advertisement that immediately tells you which brand is being advertised, even if you are not looking at the screen.
- Motion Marks- These are short, distinctive movements that identify a brand. For instance, the Pixar animation featuring the playful desk lamp or the DreamWorks logo with the boy fishing from the moon are perfect examples of motion trademarks that have become instantly recognizable worldwide.
- Olfactory/Scent Marks- Though less common, these are unique smells associated with a brand. Some international perfume houses have successfully registered signature scents as trademarks and have built their identities around signature scents that are instantly recognizable. The dupes of these fragrances have recently gained popularity in Kenya, underscoring how distinctive scents can influence brand recognition and consumer preference.
These non-traditional elements are powerful because they create a memorable experience and foster a strong connection with consumers, allowing brands to stand out in a crowded market.
Does Kenya need to catch up with the Rest of the World?
Let us bring it closer to home. In Kenya, our intellectual property laws, particularly the Trade Marks Act, have done a commendable job protecting traditional trademarks such as logos,
names and slogans. However, when it comes to non-traditional trademarks like sounds, motions or scents, our legal framework lacks clear provisions that allow businesses to register and protect these non-traditional brand elements. As a result, a Kenyan company that develops a catchy jingle for their product, or a signature scent for their store would struggle to secure legal protection against imitation.
This legislative gap represents a missed opportunity for Kenyan brands and innovators. In an increasingly globalized market, businesses are constantly exploring new and creative ways to express their identity and to connect with consumers. Non-traditional trademarks offer a powerful avenue for differentiation and brand building.
What’s Next for Kenya?
As the world of branding continues to evolve, it is increasingly important for countries to adapt their intellectual property laws to keep pace with these changes. For Kenya, embracing non-traditional trademarks would not only strengthen brand protection, but also spur innovation by encouraging Kenyan businesses and creators to think beyond the conventional. It would also align Kenya’s intellectual property framework with global standards and international best practices.
By taking these steps, Kenya can build an intellectual property landscape that is robust, forward-thinking, and reflective of the creativity and innovation that define its entrepreneurs.