According to trademark law, a trademark is defined as “any sign that identifies the goods of one party and distinguishes them from the goods of others,” i.e., a mark that indicates the provider of the goods.
Identification as a Source Indicator – The Function of a Trademark
Because of its ability to differentiate between one’s goods and those of others, a trademark serves various functions.
For example, among many types of digestive tonics, seeing the “Fan Symbol” on a Whal Myung Su bottle helps consumers recognize that it’s a product made by a specific company. This is the identification function.
At this point, consumers may also think: “That company is reliable, so this product must be better than similar ones.” “I’ve tried it before and it was better than other brands. It’ll probably be the same this time.” This assumption is the quality assurance function of the trademark.
Additionally, if a planner made by Louis Vuitton catches your eye just because of the brand, this demonstrates the advertising and promotional function of a trademark.
Determining Trademark Use – The Core Role of Source Identification
The most important and core role of a trademark is its ability to indicate the source of a product or service. If a sign cannot serve as a source identifier or is not used for that purpose, it is not considered a trademark.
For example, in a trademark infringement case brought by Agatha—which uses a Scottish Terrier dog shape as its representative brand—the court ruled that although both Agatha and Swarovski used dog-shaped designs, Swarovski’s dog design was merely decorative and did not function as a source identifier. Therefore, it was not deemed trademark infringement.
In this case, since Swarovski’s dog design was not being used as a trademark but merely as a design, there was no trademark infringement.
Anything Can Be a Trademark
In the past, only visual elements such as text, symbols, and company logos were recognized and protected as trademarks.
However, with changes in industry, non-verbal and non-visual elements have become key aspects of branding and serve as source identifiers for consumers. As a result, today, any sign that can be used to indicate the origin of a product or service can become a trademark.
For instance, if a product’s shape itself functions as a source identifier, it can be registered as a three-dimensional trademark.
During the Apple-Samsung patent dispute, the U.S. court sided with Apple, not because the two smartphones had similar designs but because the early Samsung Galaxy models were deemed to have imitated the source-identifying design of the iPhone 3, which had already achieved significant recognition. This was considered trademark infringement.
Although products with similar designs, such as the Prada phone, existed before the iPhone 3, the court found that the unique curvature, bezel size, and home button of the iPhone 3 had become a trade dress—a product design functioning as a trademark. Consequently, this design required trademark protection.
Following trademark law principles, which protect trademarks and their similar variations, the court determined that the early Galaxy models infringed on Apple’s trademark rights.
Other Non-Traditional Trademarks
Colors and Color Combinations:
If a color or combination of colors has sufficient source-identifying capability, it can be registered as a trademark. However, since there are a limited number of colors available, proving widespread recognition is often necessary for registration.
Currently, the Korean Intellectual Property Office has registered only one color trademark: the golden color of Haribo’s Golden Bear packaging. According to reports, the annual production of Haribo Golden Bears is enough to circle the Earth four times.
Sounds:
Sound trademarks are also registrable. Examples include the popular advertisement jingle “The Genuine Jangsu Stone Bed Has Five Stars” and the comedian catchphrase “Okay, I Don’t Get It.” Other sound trademarks include the notification sound of KakaoTalk, Pinkfong’s theme sound, and the engine sound of Harley-Davidson motorcycles.
Scents:
While there are currently no registered scent trademarks in Korea, scents such as the grape scent of a shopping mall or the signature fragrances of Hermès and Chanel No. 5 could theoretically be registered if they possess source-identifying capability.
Shape, Sound, and More: Any Source Identifier Can Be a Trademark
Anything that can serve as a source identifier can become a trademark. For instance, the Korean Supreme Court recognized Adidas’ three-stripe design as a trademark when placed on specific locations, such as the sleeves of a T-shirt or the side of a shoe, because consumers widely associate this with Adidas products.
A similar example is Christian Louboutin, the luxury French shoe brand known for its signature red soles. Louboutin’s shoes, including high heels, have featured bright red soles since the brand’s early days. Over time, consumers came to recognize any shoe with a bright red sole as a Louboutin product, even confusing non-Louboutin shoes with red soles as being part of the brand.
Despite initial controversy, this red sole was ultimately recognized as a trademark because it functions as a source identifier.
There have even been attempts to register the unique architecture of buildings as trademarks. One notable case involved the Urban Hive building located at the intersection near the Gangnam Kyobo Bookstore in Seoul. The applicant argued that the building’s distinctive exterior could be recognized by consumers as representing a particular company. Although the Patent Court rejected the application due to insufficient distinctiveness, similar cases may continue to emerge in the future.
Recently, discussions have taken place regarding whether interior designs can be registered as trademarks. Global franchises like McDonald’s, Apple, and Starbucks maintain consistent interior designs worldwide to strengthen their brand identity. In the U.S., the interior design of Apple Stores is already registered as a trademark.
In Korea, however, trademark registration for interior designs is still under review. For now, the Unfair Competition Prevention Act has been revised to prohibit the imitation of interiors that function as trade identifiers.
Nevertheless, under the principle that “anything with source-identifying capability can be a trademark,” building exteriors and interiors should theoretically be eligible for trademark registration. Any feature that can function as a brand and serves as a source identifier can be registered as a trademark.