According to the recently amended Trademark Act to take effect on July 1, 2012, any sign or indication that can be used to identify the source of goods or services is protectible as a trademark. Therefore, motion and hologram marks will be registrable in addition to other non-traditional marks, such as color marks, three-dimensional marks, and sound marks.
Where the mark is a motion mark, a hologram mark or a three-dimensional mark, apart from submitting a reproduction of the applied-for mark and a description of the mark upon filing, the applicant needs to submit at least two views or images of the mark. Imaginary lines may be employed to indicate the manner the mark is used or to be used on a product/service, the position of the mark on the product/service, the content or function of the mark, etc., so as to clearly represent the mark.
Moreover, non-traditional marks must be distinctive and non-functional.
Distinctiveness: In general, it is difficult for a non-traditional mark to be inherently distinctive as compared to a traditional mark. For instance, color marks, three-dimensional marks, motion marks, holograms, and sound marks tend to be regarded as product decorations, part of product packaging, or a means of advertising, and not as a source identifier. Therefore, an applicant is generally required to submit proof that the applied-for mark has acquired distinctiveness as a result of extensive advertising and widespread use in commerce.
Non-functionality: A non-traditional trademark can be registered if it is source-identifying and non-functional. In other words, a sign or indication that is indispensable to the function of a product or service on which it is used is not registrable. As a general practice, the non-trademark function of a product/service feature or design shall be determined by the use or purpose of the product/service, or the cost or quality of the product/service.