Your brand is more than a name and a logo. Sometimes the thing customers recognize first is a colour, a sound, or even a scent. Think Tiffany Blue, the Intel chime, or the distinctive smell people associate with Crayola crayons.
In Canada, these kinds of brand signals can now be protected as trademarks, in appropriate cases. They are often called non-traditional trademarks because they go beyond words and designs.
This article will cover a brief overview of what Canadian law generally allows, what the Canadian Intellectual Property Office (CIPO) looks for, and what you should expect if you want to register something like a colour, sound, or scent.
What Are Non-traditional Trademarks?
A trademark is a sign used to distinguish your goods or services from those of others. That sign can be a word, a logo, or something more sensory.
Non-traditional trademarks can include:
- Colours
- Sounds
- Scents
- Shapes
- Textures
- Holograms
- Moving images
These types of non-traditional marks can be valuable because they protect parts of branding that are often easy to copy. The trade-off is that the applications for non-traditional marks typically face more scrutiny than an application for a standard word or design mark.
What Makes Obtaining a Registration for a Non-Traditional Trademark Harder: Distinctiveness
A non-traditional trademark must be distinctive meaning that people need to experience the mark and connect it to one specific business.
With a brand name like KODAK or GOOGLE, distinctiveness is easier to understand because there is only one Google, for example. With a colour, sound, or scent, the Trademarks Office often assumes the public will not automatically see it as a trademark, which means you may need evidence showing that Canadian consumers already recognize it as yours.
If you are considering one of these non-traditional trademarks, the biggest question is usually not “Can I file it?”, but rather, “Can I show that it is distinctive?”
Colour Trademarks
You can trademark a colour in Canada, including a single colour on its own, as long as it functions as a trademark.
A classic example people are familiar with is Christian Louboutin’s red shoe sole. The legal fights around that look are famous for a reason. When consumers see the colour red on the of certain footwear, many immediately think of Louboutin.
A colour trademark works best when the colour is used consistently in a specific way, and the market has learned to associate that colour with the product.
What CIPO will usually look for:
- Whether the colour is used consistently over time
- Whether customers connect that colour to your brand, not just the product category
- Whether the colour is common in the industry, or something competitors reasonably need to be able to use
- Whether the colour is being used as a brand identifier rather than a design flair
Evidence that helps show the colour is distinctive includes:
- Length of use in Canada
- Sales figures and geographic reach
- Advertising that highlights the colour as part of your identity
- Photos of packaging, storefront use, product listings, and consistent marketing
- Media coverage
- In some cases, consumer survey evidence
Sound Trademarks
Canada recognizes sound trademarks, and sound marks can be extremely strong when used consistently.
The Intel chime is a perfect example of how quickly a sound can signal source. The MGM lion roar is another example most people recognize instantly.
Sounds work best when they are treated like a logo. They need to be used consistently and in a way that consumers experience as branding.
To apply for a sound trademark, you generally need:
- An audio file that captures the sound
- A written description of the sound
Then comes the same distinctiveness question: do consumers hear the sound and think of your goods/services?
Common issues that come up with sound marks:
- The sound is too generic, like a basic alert beep
- The sound is used inconsistently, so consumers never learn it as a brand cue
- The sound feels functional, meaning it exists mainly to signal a system action rather than to identify source
If you want to protect a sound, use it intentionally. Put it at the start of your ads, the opening of your videos, or the launch of your app. Consistency is what turns a sound into a trademark.
Scent Trademarks
Scent trademarks are possible in Canada, but they are rare and usually the hardest to register, for two main reasons.
First, it can be difficult to describe a scent in a clear and consistent way.
Second, scent is often functional.
If the product’s purpose is to smell good, like perfume, air fresheners, scented candles, or fragranced cosmetics, CIPO may treat the scent as a product feature rather than a trademark.
Crayola’s crayon scent is a popular example people mention because many say they can recognize it instantly. That is the core concept behind a scent mark. The scent is not just pleasant, it signals source.
What CIPO will typically look for:
- Whether the scent alone distinguishes your goods in the minds of consumers
- Whether the scent is functional, such as masking odour or delivering a performance benefit
- Whether your description is clear enough to identify what is being claimed
Even if you secure a registration, enforcement for scent marks can be more complex than a standard trademark dispute. Comparing a word mark is more straightforward. However, comparing scents may require more technical evidence.
Applying for a Colour, Sound, or Scent Mark
Most non-traditional applications rise or fall based on three things: representation, distinctiveness, and functionality.
- Clear representation
- Colour: a precise description and a clear way to identify the shade
- Sound: an audio file plus a written description
- Scent: a written description that clearly captures what is being claimed
- Evidence of distinctiveness
- This will often the make or break the application. You want to show that Canadians recognize the sign as identifying your business and distinguishing your goods/services from those of others.
- Not Functional
- If the feature gives a practical advantage that competitors need to compete fairly, CIPO may push back.
Why Non-traditional Marks Can Be Worth It
Non-traditional trademarks can create a strong moat around your brand if customers genuinely recognize such trademarks as yours. They can:
- Strengthen brand recognition
- Create a clearer identity in crowded markets
- Deter copycats who try to mimic the overall look and feel of your products
- Add an extra layer of protection alongside your name and logo
- Serve as a unique business assets providing competitive advantages
The key is choosing the right tool at the right time. Many businesses are best served by registering their business name and logo first and then consider non-traditional marks once the market recognition is real and provable.
FAQs ABOUT NON-TRADITIONAL TRADEMARKS
Can I trademark the colour of my packaging?
Yes, sometimes. But you usually need to prove that consumers connect that colour to your brand, not just that it looks nice.
Can I trademark a jingle?
Yes. Sound marks are accepted, but you need proper representation and evidence that the sound identifies your business (for e.g., think of the McDonald’s “I’m Lovin’ It” jingle.)
Are scent trademarks realistic in Canada?
They are possible but uncommon, as they typically require strong evidence and a clear argument that the scent is not functional.
Should I file right away or wait?
Timing matters. Filing too early can backfire if you cannot show sufficient evidence of distinctiveness in Canada. Many non-traditional marks are therefore strongest after consistent use and real market recognition.
FINAL THOUGHTS
Names and logos are still the most common and straightforward trademark applications to file in Canada. But if your brand has a signature colour, like Louboutin’s red sole effect, a recognizable sound like the Intel chime, or a unique scent that is not functional, which consumers genuinely associate with you, filing a non-traditional trademark application would be worth exploring.
Thinking about protecting something unusual? Anchor IP Law can help you assess whether your colour, sound, or scent is registrable in Canada, what evidence you would need, and the best filing strategy for your business.
