A hologram trademark is a
non-conventional trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
where a
hologram
Holography is a technique that enables a wavefront to be recorded and later re-constructed. Holography is best known as a method of generating real three-dimensional images, but it also has a wide range of other Holography#Applications, applic ...
is used to perform the trademark function of uniquely identifying the commercial origin of products or services.
In recent times holograms have been increasingly used as trade marks in the
marketplace
A marketplace or market place is a location where people regularly gather for the purchase and sale of provisions, livestock, and other goods. In different parts of the world, a marketplace may be described as a '' souk'' (from the Arabic), ' ...
. However, it has traditionally been difficult to protect holograms as trademarks through registration, as a hologram was not considered to be a 'trademark'. This issue was addressed by the
World Trade Organization
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
, which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)).
Despite the recognition which must be accorded to holograms trademarks in most countries in other fields of the art, the ''graphical representation'' of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue.
Registration
Canada
In Canada, hologram trademarks are generally not acceptable if they cannot be represented graphically or if they are regarded as more than one mark.
The non-traditional Trade Mark Archives
A database of sound trade marks
United States
In the United States, the trademark manual for examination requires under 1202.14 that a hologram used in varying forms does not function as a mark in the absence of evidence that consumers would perceive it as a trademark. See In re Upper Deck Co., 59 USPQ2d 1688 ( TTAB 2001), where the Board held that a hologram used on trading cards in varying shapes, sizes, and positions did not function as a mark, because the record showed that other companies used holograms on trading cards and other products as anti-counterfeiting devices, and there was no evidence that the public would perceive applicant's hologram as an indicator of source. The Board noted that "the common use of holograms for non-trademark purposes means that consumers would be less likely to perceive applicant's uses of holograms as trademarks." 59 USPQ2d at 1693.
Therefore, in the absence of evidence of consumer recognition as a mark, the examining attorney should refuse registration on the ground that the hologram does not function as a mark, under §§1, 2 and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052 and 1127. Generally, if a hologram has two or more views, the examining attorney should also refuse registration under §§1 and 45 of the Trademark Act, 15 U.S.C. §§1051 and 1127, on the ground that the application seeks registration of more than one mark. In re Upper Deck, supra. See TMEP §807.01.
Provided the applicant can demonstrate that the use of a hologram or moving image both serves as a mark and is not functional, an application for such a mark may be made to either register. That being said, Examining Attorneys are instructed to refuse an application for registration of a hologram if the applicant does not provide evidence of consumer recognition of the hologram as a mark. the applicant seeking registration of a hologram must submit a drawing of the mark that captures the dimensions thereof. Further, Examiners are instructed to refuse registration of any holograms that show two different images on the grounds that the application is seeking protection for two separate marks. Further, the application must include detailed written description of the mark. During publication the drawing pages for these marks are published and thereafter the drawing page is incorporated into the registration certificate which is made available at the USPTO as well as the USPTO website, see first external link.
European Union
In the European Union, Article 4 of ''Council Regulation (EC) No. 40-94'' of 20 December 1993 ("signs of which a Community Trade Mark
A European Union trade mark or EU trade mark (abbreviated EUTM; named ''Community Trade Mark'' (''CTM'') until 23 March 2016) is a trade mark which is pending registration or has been registered in the European Union as a whole (rather than on a na ...
may consist") relevantly states that any CTM may consist of "any signs capable of being represented graphically...provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings". In Sieckmann v German Patent Office (case C-273/00
the EcJ states that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.
This definition generally encompasses only very simply structured holograms, and therefore an applicant for a CTM may use ''one photograph or some views'' to graphically represent their trade mark, see first external link.
References
External links
holograms - the next generation of trademarks?
— contribution of Ralf Sieckmann in IP Review 13, Jan. 2006 an
of the 2007 listing.
The fresh version of Non-Traditional Trade Mark Archives under publications
Holography
Intellectual property law
Trademark law
{{Trademark law