Tommy The Who.jpg

Tommy has a lot to offer in advancing the recognition of certain kinds of non-traditional trademarks, especially touch marks. Yes, The Who’s tune from the Tommy Soundtrack “See Me, Feel Me / Listening to You” repeats these lyrics over and over: “See me, feel me, touch me, heal me.”

We have discussed non-traditional trademarks a bit already, here, here, here, here, and here, for example, and in case you’re interested, here is a link to a brief article I wrote on the subject that was published in Create Magazine a couple of years ago.

When I speak to marketers about the power of non-traditional trademarks I am quick to remind how any subject matter under the sun that can be perceived by humans has potential to serve and be protected as a trademark so long as it does three things: (1) identify goods and/or services; (2) distinguish those goods and/or services from those of others; and (3) indicate the source of those goods and/or services, even if that source is unknown. In short, IDS must exist:  Identify, Distingish, and indicate Source.

Recognizing how courts and the Trademark Office are often skeptical of IDS with claimed non-traditional trademarks, whave already spent some time talking about how the equivalent of “look-for” advertising is the key to success in establishing most kinds of non-visual, non-traditional marks:

“As non-traditional trademarks proliferate, the brand new challenge of creativity will be in developing the legal equivalents of “look for” advertising when marks touching the other non-visual senses are involved. Using the admittedly clunky “look for” phrase won’t even work when something other than a consumers eyes need to experience the claimed mark. The challenge there will be in coming up with creative and engaging ways to be overt about the intention of having consumers experience the subject matter in question as a trademark.”

So, back to Tommy, my proposal is that some pharma company license the music from The Who’s Tommy Soundrack and the “See me, feel me, touch me, heal me” lyrics to promote recognition of cold medicine product packaging having a distinctive texture and feel as a trademark for the cold medicine. I submit that doing so would help demonstrate the necessary IDS to establish non-traditional trademark rights that rely on the sense of touch.

As a parting note, apparently “[t]here is no firm agreement among neurologists as to the number of senses because of differing definitions of what constitutes a sense.”

We typically think of the five traditional human senses (sight, hearing, touch, smell, and taste) as covering the entire potential landscape for non-traditional trademarks, but as technology continues to advance at an ever rapid pace, even these very broad subject matter categories may be too limiting at some point in the future.

According to Wikipedia: In addition to Aristotle’s five traditional senses, “[h]umans are considered to have at least five additional senses that include: nociception (pain), equilibrioception (balance), proprioception & kinesthesia (joint motion and acceleration), sense of time, thermoception (temperature differences), with possibly an additional weak magnetoception (direction), and six more if interoceptive senses are also considered.”

Who will be the first to seek non-traditional trademark protection for a mark claiming to be perceived by one of these many non-traditional senses?

Any suggestions on suitable music and lyrics that could be licensed to promote recognition of a non-traditional trademark in one of these yet to be tapped non-traditional human sense categories?

  • About 15 years ago, French Fragrances launched one of their brands in a craft, ‘b’ flute corrugated container …. now when I think about that, I think of the Starbucks coffee holders – protectors of burned fingers. Good Luck

  • Bawls Guarana: the glass bottle for this beverage has raised bumps.

  • The Method line has some products packaged in plastic with a matte, seemingly rubberized finish, that is engaging to touch. Older SAABs also used an ergonomic key fob which was an interesting innovation even though it didn’t really catch on.

  • Doesn’t the Aveeno Packaging have a softer texture? I think it may even be part of their brand positioning.

  • ReaLemon Lemon Juice comes in a shaped plastic bottle, but the top portion of the bottle (which is covered with a graphic of a lemon) has bumps, to mimic the texture of a real lemon. When the consumer picks up the bottle at shelf, he/she gets an immediate reinforcement of the products 100% real juice positioning.

  • Here are two:
    Dim, a European manufacturer of pantyhoses, now a subsidiary of Hanes, used to have a very unique packaging: The hose was packed in a small pouch made of the same material. The whole thing was then packed in a cardboard pack that allowed the buyer to draw a bit of the pouch material over her hand so as to see what it would look like on her skin. The pouch could also serve to protect the hose during a machine wash.
    Frotée, a German brand of deodorant by Schwartzkopf (I think) came in spray cans covered with terry-towel fabric (Frotée, I am told, means terry towel in German). It did not make it, but there could be many non-marketing reasons for that..)

  • This site contains a huge archive of innovative packaging. You may want to peruse it for inspiration.

  • Absolutely… the Coca-Cola contour bottle. It’s one of Coke’s most important pieces of brand iconography. Ads were even made showing kids at a sleep over party during a stormy night when the lights go out. One of them goes to the kitchen in the dark, opens the frig and feels around, then the lights come back on and he’s drinking a Coke — all because he could identify it by just its shape in the dark.