38 N. Ky. L. Rev. 1 (2011)
On Nontraditional Trademarks

handle is hein.journals/nkenlr38 and id is 3 raw text is: ON NONTRADITIONAL TRADEMARKS

Kenneth L. Port*
I. INTRODUCTION
International substantive trademark law harmonization has been an abject
failure. This failure is manifested in the inconsistent treatment of nontraditional
trademarks. This article exposes the perceived broad protection of nontraditional
trademarks for the great deception that it is. By allegedly protecting nontraditional
trademarks, the United State renders true trademark harmonization impossible.
The United States itself and commentators go too far in expressing this protection.
In fact, nontraditional trademark protection is extremely limited, very rare and
almost never enforced. Yet, the United States requires trading partners to protect
nontraditional trademarks as if it is a mainstay of trademark jurisprudence in the
United States, when it is not. The World Intellectual Property Organization
(WIPO) and the international community are in the process of harmonizing to this
fictitious standard.   This will render real efforts at genuine trademark
harmonization even more difficult to attain.
Part II of this article describes the setting of nontraditional trademark
jurisprudence in the United States.    It concludes that Americans boast of
protection of odd appellations of source, but in reality, it is very infrequently
accomplished and then only at great expense.
Part III traces the etymology of the words symbol and device, the precise
statutory terms upon which the protection of nontraditional trademarks rests.
Parts IV - XI address each known type of nontraditional trademark. Specific
data is provided to conclude that color and sound make up virtually all
nontraditional trademarks and that the data does not support claims of
nontraditional trademarks playing a meaningful role in United States trademark
jurisprudence.
Part XII presents a very brief explication of the Common Law of trademarks
compared to the Civil Law of trademarks so that one can see the disparate views
of trademark protection.
Part XIII provides a normative attack on the protection of nontraditional
trademarks and concludes that, in almost all cases, they do not operate as
indicators of source and therefore should not be protected.
* Professor of Law and Director, Intellectual Property Institute, William Mitchell College of
Law. I am indebted to Madeline Bowie (2010) for her research assistance. I am also grateful to
Jim Baker, Adjunct Professor of Law, William Mitchell College of Law and the members of my
Contemporary Issues in IP class for their input and feedback of an earlier draft of this article. I am
also grateful to Neal Axton, Reference Librarian, William Mitchell College of Law, for his research
and input.

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