Rebel cartoon stick figure with green hair pointing at a chalkboard with “Position Marks” written in large chalk letters — representing a blog post about position marks and non-traditional trademarks.

Non-traditional trademarks are unconventional and unique forms of trademarks, including trade dress, color marks, shape marks, configuration marks, position marks, sound marks, scent marks, motion marks, hologram marks, texture marks, and taste marks. Non-traditional trademarks are less common than traditional trademarks but provide a creative and innovative way for businesses to establish and protect their brand identities.

A position mark is a type of trade dress consisting of the specific placement or position of features (e.g., color, shapes, etc.) or parts on a product or product packaging. In order to be registered as a trademark, a position mark must be capable of identifying the source of the product, distinctive, and not protect visual features that are functional or essential to the use of the product or product packaging.

Position marks are similar to, but distinct from, shape marks (focusing purely on the three-dimensional shape of a product) and configuration marks (focusing on the overall design rather than specific placement of a feature). When looking at a description of a position mark, look for phrasing that describes the placement or position of a feature on a product or packaging. For example, position marks often include words like “position” or “placement” in the description of the mark.

Some of the oldest, still-active position mark registrations in the US involve fencing. The oldest, still-active position mark is the Keystone Red Brand Fencing position mark, first registered in May 1919 [1] (Keystone Consolidated Industries, Inc. is also the owner of several other fencing-related red color position marks). Other old, fencing-related position marks include the CMC White Fence Post position mark, first registered in November 1920 [2], and the CHS Aluminum Fence Post position mark, first registered in April 1929 [5]. Other old, still-active position marks also include United States Gypsum Company Red Bag position mark, first registered in October 1922 [3], and the Apex Red End Folding Rule position mark, first registered in February 1927 [4].

Want to learn more about trademarks? Check out our posts on I Think I Understand IP, But Can You Give Me An Example?, Why Should I Care About Trademarks?, and 5 More Key Facts About Trademarks.