- A word mark or logo is often inherently distinctive from the moment it is adopted.
- Even a genuinely distinctive feature cannot be registered as a trademark if it is primarily functional — meaning the feature exists mainly because of what it does, not because it…
When people picture a trademark, they usually picture a word or a logo. But Canadian trademark law recognizes a much broader range of things that can function as a non-traditional trademark — including sounds, colours, three-dimensional shapes, and more — as long as they actually do the job a trademark is supposed to do: distinguish one business's goods or services from everyone else's.
Registering something outside the classic word-and-logo mould is possible, but it comes with extra hurdles. This article explains what can qualify as a non-traditional trademark in Canada, why these applications face more scrutiny, and what the process generally involves.
What Can Count as a Trademark Beyond Words and Logos
| Type | Example of What It Might Cover |
|---|---|
| Sound | A distinctive audio jingle or tone associated with a business |
| Colour | A specific colour applied to a particular part of a product or its packaging |
| Shape (three-dimensional mark) | The distinctive shape of a product or its container |
| Texture | A distinctive tactile feature of a product's surface |
| Scent or taste | A distinctive smell or flavour used to identify a product's source |
| Hologram or moving image | A distinctive holographic or animated feature used in branding |
| Mode of packaging | The distinctive way goods are wrapped or presented |
Not every category is registered often in practice, and some face steeper practical hurdles than others, but the legal door is open to all of them if the applicant can meet the requirements.
The Distinctiveness Hurdle Is Higher Here
A word mark or logo is often inherently distinctive from the moment it is adopted. Non-traditional marks are usually the opposite: consumers do not automatically read a colour, a sound, or a shape as a brand identifier the way they read a word or logo.
Because of this, non-traditional trademark applications frequently need to show acquired distinctiveness — meaning evidence that, through actual use and marketing, consumers have come to recognize the specific colour, sound, or shape as pointing to one particular business, rather than seeing it as just decoration or a product feature.
Gathering that evidence (consumer surveys, sales and advertising figures, length and manner of use) is often the hardest and most expensive part of pursuing this kind of registration.
The Functionality Barrier
Even a genuinely distinctive feature cannot be registered as a trademark if it is primarily functional — meaning the feature exists mainly because of what it does, not because it identifies the source of the product. Trademark law is not meant to give a business a permanent monopoly over a useful feature that competitors need to compete effectively; that kind of protection belongs, if anywhere, to other areas of intellectual property law with their own separate rules and time limits.
This functionality principle is one of the more common reasons non-traditional applications, especially for shapes, run into trouble — the more useful the shape is to how the product works, the harder it becomes to protect as a trademark.
Practical Steps to Pursue a Non-Traditional Trademark
- Assess distinctiveness honestly first. Has the feature actually been used long enough and marketed heavily enough that customers associate it with your business specifically?
- Rule out functionality concerns. If competitors would be genuinely disadvantaged without access to the same feature, it may not be a good trademark candidate.
- Gather evidence of acquired distinctiveness — sales figures, advertising spend, survey evidence, and examples of how the feature has been used and promoted.
- File the application through CIPO. The same fee structure applies as for a standard word or logo mark: as of CIPO's fee schedule effective January 1, 2026, filing online costs $491.06 for the first class of goods or services and $149.04 for each additional class — these are government fees that change over time, so verify the current amount before you file.
- Expect a longer, more document-heavy examination than a typical word mark application, and budget time and legal cost accordingly.
Frequently asked questions
Is it worth trying to register a colour or sound if I'm a small business?
It depends heavily on how central that feature is to your brand and how much evidence you can realistically gather of consumer recognition. For many small businesses, a strong word mark or logo is a more practical first investment.
Can I register the shape of my product if it's also functional?
If the shape's most important features exist because of what the product does rather than how it identifies your brand, that functionality can block trademark registration for those features, even if the shape is otherwise distinctive.
How long does it typically take to build enough evidence of acquired distinctiveness?
There is no fixed timeline — it depends on how long and how consistently you have used the feature, how much you have invested in marketing it, and how directly you can connect that use to actual consumer recognition. This varies enormously by business and industry.
Do non-traditional trademarks get the same legal protection as a word mark once registered?
Yes — once registered, a non-traditional trademark carries the same statutory rights as any other registered trademark. The harder part is generally getting there, not the strength of the protection once granted.
This is a corporate question
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