The legal protection of sound, scent and colour marks in South Africa: Lessons from the European Union and the United States of America

Abstract

A trade mark is defined as a sign that is capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trade marks, copyright, patents and designs are some of the forms of intellectual property. Trade marks can be divided into traditional trade marks and non-traditional trade marks. Traditional trade marks are capable of being represented graphically, for example logos, service marks or company names. Non-traditional trade marks are generally not capable of being represented graphically. Examples of these marks are inter alia, scent, taste, touch and sound marks. Technology is changing the way business is being conducted. The registration of nontraditional trade marks has grown exponentially as businesses seek to use innovative ways to protect their brands. Non-conventional trade marks may be visible signs, examples of which include colours, shapes, moving images, holograms and positions or non-visible signs such as sounds, scents, tastes, textures. Visible signs may easily be registered since they satisfy the requirement of graphical representation. Non-visible marks do not generally meet this requirement which makes their registration more complicated. An example of a registered visible non-traditional trade marks is the four finger shape of Kit Kat chocolates.