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?