Defining Non-Traditional Marks: An EU–US Framework for Georgia and Similar Jurisdictions
Author : Vasili Karseladze 26/12/2025
Article ABSTRACT
In 2024, Georgia abolished the graphic-representation requirement for trademarks, opening the way for registering non-traditional signs but leaving open how far such protection should extend and on what conditions. This article places that reform within the evolution of trademark law and asks how Georgia and similar jurisdictions can recognise non-traditional marks without undermining consumer interests, fair competition, or the coherence of IP law.
The study employs a doctrinal methodology combining historical and comparative analysis. It examines TRIPS, EU legislation and case-law, and key U.S. decisions on non-traditional marks, with emphasis on acquired distinctiveness and functionality. It then evaluates Georgia’s 2024 amendments and develops a normative model for further reform.
The article first defines the non-traditional trademark as any sign that departs from the classical typographical and two-dimensional graphic paradigm yet is capable of indicating commercial origin and can be represented with sufficient clarity and precision. Second, it identifies three key doctrinal pillars for Georgia: (a) clarity and precision of representation, read in light of the Sieckmann criteria; (b) a robust doctrine of acquired distinctiveness (secondary meaning), anchored in evidence from the relevant public; and (c) a dual concept of utilitarian and aesthetic functionality that prevents trademark law from displacing design, patent and competition law. Third, the article contributes a systematic classification of non-traditional marks into three categories: visually perceptible signs, invisible organoleptic signs, and hybrid signs, providing indicative filing standards for each. It recommends clarifying the statutory definition of a trademark, transforming the closed list of signs into an open illustrative catalogue, and refining the wording of aesthetic functionality to focus on aesthetic value.
The article argues that the EU model offers the most appropriate regulatory template for Georgia, while U.S. practice provides a valuable analytical laboratory. It further calls for detailed examination guidelines and consumer surveys as standard evidence of secondary meaning, and proposes a framework that can be adapted by other small jurisdictions facing similar choices.
Key words: Non-traditional trademarks, Acquired distinctiveness (secondary meaning), Aesthetic functionality, Sieckmann criteria, EU–US comparative trademark law
Article DOI: https://doi.org/10.55367/VEDY2438