Are Non-traditional Trademarks a Danger to the Artistic Domain in the European Union and Japan?

Non-traditional trademarks, such as three-dimensional, hologram, color, sound, scent, and texture marks, have been at the core of commercial sensory marketing strategies that aim to build a long-lasting and unforgettable experience with consumers. They often come after branding, including, among others, product color, sound, and scent, while challenging the conventional understanding of trademarks. Yet, non-traditional trademarks have baffled decision-makers with the possible negative impacts of trademark registration on the public domain and its sub-category, the artistic domain. Even though scholars have discussed its impact on competition, creative industries are not immune from similar threats either. As long as authorities stay loyal to the trend of excessive interpretation of trademark use, artistic use of color or musical composition may also be interpreted to constitute trademark infringement. Studying different tendencies in the European Union and Japan, this chapter argues that the authorities should not compromise creative interests besides those of competition. In support of this argument, this article attempts to redraw the borders of the public domain in trademark law based on the negative effect of protection on the artistic domain. This chapter contributes to the literature by revisiting the blurry area of the artistic domain in trademark law, which has been poorly positioned in trademark laws and discussed in legal scholarship. The chapter uses the trademark law and practice of the European Union and Japan to outline the non-traditional signs afforded trademark protection and reconsider the risk of compromising the artistic domain to intellectual property rights. Cultural aspects of the registration of non-traditional trademarks in the European Union and Japan add another perspective to the chapter as a possible parameter to measure or predict the socio-cultural impacts of non-traditional trademark protection in two different parts of the world—the West and East.