Non-traditional trademarks have been registrable in A
ustralia since the Trademarks Act 1995 came into force.
However, recent decisions of Australian courts indicate that many issues relating to the definition, scope and
enforceability of these highly coveted marks remain unclear
Ross G McLean
Although Mexican law appears not to recognize non-traditional marks, on closer examination certain types
of non-traditional mark enjoy full trademark protection in
Mexico, provided that they fulfil specific criteria.
Where the trademark law does not cover such marks, it
may be possible to find alternative protection under
other legal measures
Carlos Trujillo
The Benelux countries, Belgium, the Netherlands and Luxembourg, have uniform trademark and design laws,
and a harmonized approach to the protection of non-traditional marks. As members of the European Union,
the practice of the Benelux countries in this area is also highly influenced by EU law
Paul Steinhauser and Rens Schrijver
Even before the implementation of the EU First Trad
emarks Directive in Germany in 1995, the German
courts and the Patent and Trademark Office had begun
to establish a tradition of registering and defending
non-traditional marks. However, the use of such marks has challenged German trademark practice and
raised new questions to be answered by the courts
Nils Weber and Martin Viefhues
European Union
Modern EU trademark law offers, in theory, the possibility of registering shape, sound or colour marks,
but applicants will face hurdles such as graphical representation and proving acquired distinctiveness
Vanessa Marsland
There are very few limitations, in principle, to what
can be registered and protected as a trademark under US
law. However, tests showing that the sign is a source identifier, is not functional and is distinctive must be met
Thomas M Williams and John Gabrielides
Marilena Garis, Jacobacci & Partners, Italy
As in all EU jurisdictions, trademark law in Italy recognizes the registrability of shape, colours and sound
marks in principle, but case law so far indicates a
guarded approach to the registration of non-conventional
marks by the national IP office and the courts
Guido Jacobacci
