What is a trademark?
Updated: Aug 24
What qualifies as a trademark?
At its simplest, a trademark is a sign that identifies and distinguishes the goods or services of one business from those of other businesses.
Under section 3 of the Trademarks Act 2019, a trademark is defined as:
Any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.
In other words, there are two important requirements:
The sign must be capable of being represented graphically; and
The sign must be capable of distinguishing the goods or services of one undertaking from those of other undertakings.
But what exactly is a “sign”?
What is a "sign"?
Based on section 2 of the Trademarks Act 2019, a sign can be any letter, word, name, signature, numeral, device, brand, heading, ticket, shape of goods or their packaging, colour, sound, scent, hologram, positioning, sequence of motion or any combination thereof.
These signs can be further divided into two categories, i.e. traditional and non-traditional.
Categories of trademarks
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Traditional | Non-traditional
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words; names; letters; numerals; logos or devices; and combinations of these. | colours; sounds; scents; shapes; holograms; positioning; and motion.
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What about collective and certification marks?
There are also specialised forms of trademarks known as collective marks and certification marks.
These serve different functions from ordinary trademarks and are subject to their own requirements.
We will cover collective marks and certification marks separately in a future article.
Examples of trademarks based on categories
Letter
A letter mark consists of individual letters. Single or multiple letters can be accepted as a trademark provided that they are distinctive enough.
Examples: PS, IBM, HSBC
PS here refers to PlayStation; IBM’s full name is International Business Machines Corporation; and HSBC stands for The Hongkong and Shanghai Banking Corporation.
Word
A word mark is a trademark consisting of only word/words. It can be divided into 2 categories, i.e. word(s) that can be typed and stylised word(s).
The former refers to marks that do not have a specific design and are represented in standard characters (Arial). The latter refers to word(s) presented in a particular font type, lettering style, layout or other visual design elements.
Can be typed
Please note that applying for a word mark without stylisation does not mean that the mark must be used in its plain form. A non-stylised word mark generally offers broader protection. Stay tuned for further discussion on this.
Stylised
For instance, Secret Recipe and Bata.
Name
Disney’s subsidiary, Disney Enterprises, Inc., holds many of Disney’s intellectual property rights worldwide. In Malaysia alone, the subsidiary holds more than 1,700 registered trademarks. The name “Disney” itself is derived from the surname of the company’s founders, brothers Walt Disney and Roy O. Disney, who established the company in 1923 as the Disney Brothers Cartoon Studio.
Signature
A person’s signature can also be trademarked. For instance, Taylor Swift had her signature trademarked in Malaysia back in 2011.
Besides, Manulife’s subsidiary in the United States, John Hancock Mutual Life Insurance Company, was named in honour of John Hancock, one of the Founding Fathers of the United States. The company’s logo incorporates John Hancock’s signature.
Numeral
A numeral mark consists of one or more numbers. Examples include 737, A380, and 777, which are used by Boeing and Airbus in connection with their aircraft models.
Device
A device mark consists of a graphical or visual element, such as a logo, symbol, drawing, or other distinctive design, without necessarily including any words.
Examples include Proton’s Tiger logo and McDonald’s Golden Arches (the “Golden M” logo).
Shape of goods or their packaging
A shape mark consists of the three-dimensional shape or configuration of goods or their packaging, where the shape itself serves as an identifier of the source of the goods.
Examples include:
The distinctive shape of the Coca-Cola bottle
In the early 1900s, Coca-Cola sought to develop a distinctive bottle that would set its product apart from competitors. In 1915, the company organised a competition inviting glass manufacturers to create a unique bottle design. The winning design was submitted by the Root Glass Company in Terre Haute, Indiana, which developed the now-iconic contour bottle, reportedly inspired by the shape and ridges of a cocoa pod.
The triangular prism-shaped packaging of Toblerone chocolate
Toblerone is shaped that way to mimic the jagged peak of the Matterhorn mountain in the Swiss Alps and as a proud tribute to founder Theodor Tobler’s Swiss homeland.
Malayan Banking Berhad’s three-dimensional tiger’s head-shaped mark.
Colour
No successful registration in Malaysia as of 19 August 2026.
Maxis and Astro have both attempted to register colour marks in Malaysia, but both companies’ applications are at the stage of provisional refusal.
Sound
Hisamitsu Pharmaceutical Co., Inc. is a major Japanese multinational healthcare company founded in 1847. The company registers its iconic “Hisamitsu” in Malaysia in 2020.
Scent
A scent mark protects distinctive smell associated with a brand. It is difficult to register as trademarks. There is no registration in Malaysia at the moment. Even in the United States, there are only 8 registrations so far.
Hologram
There is currently no registered hologram mark in Malaysia. However, the European Union Intellectual Property Office (EUIPO) Guidelines may be referred to for guidance, as they provide an example of a hologram mark.
Positioning
A positioning mark protects the specific way a sign is placed or affixed on a product. This differs from a shape or packaging mark, which protects the overall shape or design of the product or its packaging. In contrast, a positioning mark focuses specifically on the placement, location, or proportion of a sign in relation to the product.
For instance, Converse aims to protect the position of the “Converse All Star” badge on the side of the shoes.
Sequence of motion
A motion mark protects distinctive motion(s) or movement(s) associated with a brand. In Malaysia, there are 11 motion mark applications, 3 of which are successfully registered as of 19 August 2026. One of which is registered by UST (check out the mark here, a United States IT company.
Reel
A reel was produced earlier to answer the same question, but from a slightly different perspective. Do have a watch!
References
Intellectual Property Corporation of Malaysia (MyIPO). Guidelines of Trade Marks 2019 — Version 1 Amendment 2026. MyIPO Guidelines of Trade Marks 2019 — VA1 2026
Intellectual Property Office of Singapore (IPOS). What is a Trade Mark? Version 3, March 2017. IPOS — What is a Trade Mark?
European Union Intellectual Property Office (EUIPO). Trade Mark Guidelines: Hologram Marks. EUIPO — Hologram Marks
MyIPO. Register of Trade Marks. [Accessed 19 August 2026.]
That’s a Trademark. “Coca-Cola Bottle Shape.” That’s a Trademark — Coca-Cola Bottle Shape
United States Patent and Trademark Office (USPTO). Trademark Manual of Examining Procedure (TMEP), §1202.13. USPTO — TMEP §1202.13
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