When a Gesture Becomes a Brand : The Rise of Movement Marks

Introduction : “A gesture lasts a second. A brand can last forever. For the most forward - thinking companies in the world, these two facts are no longer in conflict - they are a strategy”

Imagine hearing that gentle chime when you unlock an iPhone, or seeing a superhero's fictitious cape swoosh past, or a waiter performing an elegant flourish before serving your dinner. Each of these experiences has been created with precision and engineering, is registered as a trademark, protected by law, and has become a part of many consumers' memories.

We are witnessing a revolutionary change in how we define and protect intellectual property. For well over a hundred years, trademark laws protected only static types of trademarks - names, logos and colours. As brands now begin to compete based on an experience, emotional connection or cultural identity, companies are now beginning to claim and protect a new type of trademark - movement.

What is a Movement Mark ?

A motion trademark, or a movement mark, is a trademark made up of animation or movement. Unlike a wordmark or logo, it cannot be embossed or printed on a business card because its existence depends entirely on time. Motion marks are choreography turned into intellectual property.

While movement marks may sound like something of the future, they have actually been around for several decades now. In the US, it was only in the 1990s when the USPTO started accepting non-traditional trademark registrations, which include motion trademarks. Later, the European Union Intellectual Property Office joined in, and now, many major jurisdictions in Asia, Australia, and South America have official ways of accepting movement marks.

"Motion marks represent the maturation of brand identity into something experiential. They protect not just how a brand looks, but how it behaves."

There are certain requirements that need to be met. First of all, a movement mark should not be ornamental, but distinct. Moreover, it should identify the brand as its source in the mind of the consumer. Lastly, it should not have any functionality. For example, opening a car door does not qualify as a movement mark, while a sequence of movements of a particular car door qualifies.

The Science of Kinetic Identity

There is a neurological reason why movement makes work better for brands. Humans' brains are tuned to recognize and retain information about movement. Motion is hardwired into the evolutionary history of humans. The importance of animation in brand strategies has been recognized for years by brand strategists, who know that gestures and animations leave a deeper impression than static graphics. Motion gives connotations such as speed, caution, accuracy, and playfulness. Motion can convey personality through a logo.

A new design specialty is emerging based on the same concept: kinetic branding design. While studios that specialize in logos and colour schemes previously provided their services, they now offer complete "motion systems," which establish the principles for motion, acceleration, easing, and deceleration for all elements of a brand. For instance, the pulse effect applied to a logo after clicking on a button, the motion used to open a webpage, and the time taken to load a website.

"If a logo is a brand's face, its motion system is its body language. And body language is, by nature, the hardest thing to fake"

These are some examples of decisions with brand impacts that must be made. It is no wonder why legal safeguards for motion trademarks have increased. Competitors may use comparable colours, fonts, and even logo designs, leaving the company vulnerable. It is much harder to duplicate thus making them the most defensible form of brand identity ever created.

The Legal Frontier: Challenges & Controversies

Motion trademark law continues to remain a source of conflict. There are several competing tensions that exist amongst courts and IP offices worldwide.

Distinctiveness vs Descriptiveness : The primary challenge in any motion mark application is to prove that the movement will serve as an identifier of the brand or source, rather than simply an aesthetic choice or functional means of conveying information. Many cases will be denied because the movement is too generic to qualify for trademark protection. For example, a spin logo is likely to be ineligible while a logo that spins in a certain, unique and brand associated pattern will likely have a better chance at approval.

Doctrine of Functionality : A movement that occurs as a direct result of the function of the item cannot be trademarked. This eliminates the ability of an automotive company, for example, to claim protection on the mechanical movement of the standard components of their vehicles. They can only claim protection on the non-functional, brand associated decoration of their products. The line between an intentional gesture and an engineer designed function is often hotly contested.

The AI Problem : Generative AI technology can create an unlimited number of variations of motion sequences on demand. As a result, as the digital media becomes inundated with AI created animation, concerns are raised about whether it will be possible to maintain the uniqueness of the existing motion trademarks and whether they will be subject to dilution as a result of the ongoing creation of similar looking and functioning AI generated gestures.

Human Gesture as Brand Property

Perhaps most philosophically intriguing is the potential trademarking of human gesture. Many celebrities, athletes, and performers have attempted to trademark their unique gesture with mixed results from a celebratory dance move to a specific handshake.

The deeper questions surrounding trademarking gestures touch on identity, culture, and community. Does one person own a gesture? Is there any way that a natural human action whether spontaneous, expressive, and born out of a community can be made proprietary? Trademark law has generally been hesitant to make this leap, acknowledging the huge implications involved in allowing private ownership of body language.

But the trend is growing. With brands entering the world of physical retail spaces, augmented reality experiences, and embodied interactions with artificial intelligence, gestures begin to take on commercial value. The swipe of a hand to open an expensive car door. The gesture of tipping the head to call a concierge. If such an action is tied to a single brand in the minds of consumers, then trademarking becomes more viable.

What Comes Next ?

Movement marks are no longer novelties; they have become a key area of focus for all organizations with brand consciousness, regardless of industry. The most advanced brand managers are now performing "motion audits," inventorying every single point of animated contact they make and deciding which must be safeguarded.

The law is keeping up, albeit inconsistently. Some countries have been hesitant about protecting marks of movement, requiring an extraordinarily high level of acquired distinctiveness before registering such marks. Other countries are revising their examination criteria to more comprehensively deal with motion marks in all their varieties.

What cannot be disputed, however, is that language about branding has forever changed. Identity happens over time. Perception occurs through movement. The issue is not whether brands can trademark their movements, but which ones are worth safeguarding.

"In a world of infinite visual noise, the brands that endure will be the ones that have mastered not just what they look like — but how they move."

Author: Charvi Toshniwal in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

Endnotes

1. World Intellectual Property Organization (WIPO), Joint Recommendation Concerning Provisions on the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet and WIPO resources on non-traditional trademarks, available at: https://www.wipo.int

2. European Union Intellectual Property Office (EUIPO), Guidelines for Examination of European Union Trade Marks, Part B, Section 4 – Non-Traditional Trade Marks (Motion Marks), available at: https://www.euipo.europa.eu

3. United States Patent and Trademark Office (USPTO), Trademark Manual of Examining Procedure (TMEP), §§ 1202.15–1202.17 (Motion Marks and Other Non-Traditional Marks), available at: https://tmep.uspto.gov

4. Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union Trade Mark, arts. 4 & 7, governing registrability, representation, and distinctiveness of EU trademarks, including motion marks.

5. Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995), United States Supreme Court, establishing that non-traditional subject matter may function as a trademark provided it is distinctive and non-functional—a foundational decision influencing later protection of non-conventional marks, including motion marks.