New Possibilities for Trademark Protection in El Salvador

Valeria Ramos, Associate in El Salvador, expert in Intellectual Property, shares this article on the evolution and challenges of non-traditional trademarks under the new Intellectual Property Law. She examines how these marks, which may include sounds, scents, textures, three-dimensional shapes or even flavors, provide companies with new opportunities for differentiation, innovation and strategic positioning in increasingly competitive markets.

With advances in commerce and increasingly globalized economies, both providers and consumers develop different needs. Intellectual Property is one of the branches of law that adapts most rapidly to these contexts, particularly in relation to the protection of distinctive signs.

In this context, non-traditional trademarks emerge as an innovative response to new market dynamics. These types of marks allow companies to connect with their clients in broader, more sensory ways. A brand is no longer limited to being a logo or a word; it can also be heard, touched, smelled, or even tasted. This shift means that a company’s identity is no longer seen as something static, but as a complete experience where each interaction with a product or service strengthens the relationship with the consumer and leaves a lasting impression.

In El Salvador, while intellectual property protection is not new, the new Intellectual Property Law came into force on February 15, 2025. This legislation modernizes and unifies various aspects of the Salvadoran legal framework in this field.

The repealed Law on Trademarks and Other Distinctive Signs established in Article 4 that a mark could consist of "words or groups of words, including personal names, letters, numbers, monograms, figures, portraits, labels, coats of arms, prints, vignettes, borders, lines and bands, sounds, smells, or combinations and arrangements of colors. They may also consist of the shape, presentation, or packaging of products, or their containers or wrappers, or the means or establishments where products or services are offered. Trademarks may also consist of geographical indications.”

The enactment of the new Intellectual Property Law represents a significant change. Article 107 not only maintains protection for non-traditional signs but expands the list to expressly include three-dimensional images, motion marks, embossing, textures, patterns, engravings, seals, and even flavors. In addition, by establishing a non-exhaustive catalog, the law leaves open the possibility of incorporating new types of marks in the future.

These developments bring multiple benefits to companies and individuals seeking to register non-traditional marks. First, a clear and comprehensive regulation provides legal certainty to applicants. Second, it creates a reliable environment for economic actors and encourages the design of intellectual property protection strategies that take into account the broad possibilities offered by the new law. Third, it strengthens El Salvador’s position and regulation at the international level, aligning it with modern, competitive global intellectual property standards.

For this reason, the change in regulation not only benefits potential applicants for these types of marks but also positions El Salvador as a country aligned with international standards. This fosters creativity and business innovation, helping to create dynamic and competitive markets.

According to Article 3, item 30, a trademark is defined as: "Any sign or combination of signs that allows goods or services of one person or entity to be distinguished from those of another, provided these are sufficiently distinctive or capable of identifying the goods or services to which they are applied in comparison with others of the same type or class.” Beyond this definition, however, a trademark can be understood as a valuable intangible asset, a representation of what a brand owner communicates to consumers.

Trademarks fulfill several essential functions that justify the right to obtain them. For example, the distinctive function allows consumers to identify the business origin of a brand. The quality function enables a brand to signal a consistent quality of the products or services it represents, building consumer trust. Additionally, the goodwill or reputation function reflects the prestige and recognition associated with the product or service that the mark identifies.

These functions extend beyond the legal realm and directly affect how people perceive and value a brand. As mentioned earlier, it is not only about recognizing a logo or a name; a brand can evoke emotions, memories, and sensations. Every detail counts: the aroma in a store, the texture of a product, or a distinctive sound can make us smile, relax, or feel excited. This is what creates a meaningful bond between the brand and its consumers.

This is why sensory marketing is so relevant. Its purpose is simple but powerful: to make people experience the brand through one or more senses other than sight. Non-traditional marks play a leading role here, since elements once considered intangible — such as a smell, taste, or texture — become recognizable and unique to a company. It is as if the brand leaves a mark, making each interaction significant.

Traditionally, we recognize trademarks as word marks, figurative marks, or combined marks. However, with the evolution of markets, the growing need for differentiation, and new marketing approaches, non-traditional trademarks have gained prominence. These marks can be defined as those perceived through any of the five senses, requiring non-traditional methods of representation. Examples include:

1. Olfactory marks: Protect scents associated with products or services that do not derive directly from the product itself. One of the most famous olfactory trademarks was registered in the United States by Hasbro, protecting the smell of its Play-Doh toy dough. Among the five senses, smell carries the strongest sensory and memory impact.
2. Sound marks: Protect musical sequences, jingles, or distinctive sounds used to identify products or services. A classic example is the roar of the Metro-Goldwyn-Mayer lion.
3. Three-dimensional marks: Protect the distinctive shape of a product or its packaging, provided it has distinctive character. A famous case is the Coca-Cola glass bottle.
4. Motion marks: Protect animations or sequences in motion that identify a business origin when repeated.
5. Position marks: Protect the way a graphic, figurative, or three-dimensional element is placed on a product. A well-known example is the stripes on Adidas shoes.

The recognition of these categories demonstrates how intellectual property adapts to embrace new forms of protection that reflect market evolution. At this point, sensory marketing becomes a useful framework to understand how companies use the senses to build brand identity and customer loyalty.

That said, registering non-traditional trademarks also presents legal and practical challenges. The main difficulties include proving the distinctiveness of the sign (particularly for smells, tastes, or textures) and ensuring that graphic or technical representations meet clear requirements for registration and protection. Another obstacle is avoiding functionality, as the sign must not be inherently descriptive or essential to the product itself.

As is well known, Intellectual Property Offices, when reviewing a trademark application, must conduct both formal and substantive examinations to determine if the proposed sign meets the established legal requirements.

Beyond these examinations, certain formal conditions must be met, such as the representation of the sign or the subjective nature of its perception. This requirement ensures that anyone consulting the registry can clearly understand the nature and content of the distinctive sign, allowing proper identification, analysis, and potential opposition by third parties.

For traditional marks, representation is usually straightforward. In contrast, non-traditional marks pose greater challenges, as a written description or conventional graphic depiction often fails to adequately capture the nature of the sign. For example, in attempting to register an olfactory mark, applicants may submit the chemical formula or a written description of the scent. However, these methods fall short: the chemical formula may identify the substance but not the specific smell being protected. Similar issues arise with taste or sound marks.

Another key challenge for non-traditional marks is distinctiveness. The sign cannot consist of an inherent feature of the product or service it identifies but must serve as a differentiating element from other similar products in the market. This is particularly relevant since not all consumers are accustomed to distinguishing products based on non-traditional signs.

The final obstacle is avoiding functionality. A sign cannot be inherently descriptive of the product. For instance, the natural smell of perfume cannot be registered as an olfactory mark since it is intrinsic to the product itself. In contrast, scents not inherent to the product may be protected, such as the distinctive smell of Play-Doh. Similarly, if a company sought to register the taste of orange for vitamin C, the application would likely fail since consumers expect vitamin C to taste like orange or another citrus. That flavor would be seen as descriptive rather than distinctive.

Nevertheless, this does not mean that non-traditional marks cannot be registered. The key lies in their representation, which must be clear, precise, self-contained, easily accessible, durable, and objective. This ensures that, despite the complexity, the legal requirements are met so that anyone can understand the sign unequivocally.

The protection of non-traditional trademarks offers multiple benefits, both legally and strategically. First, it provides companies with legal certainty by ensuring that the distinctive signs they use are recognized, registered, and, if necessary, defended against third parties.

Second, protecting such marks strengthens a company’s portfolio of intangible assets. Distinctive signs - including non-traditional ones - are valuable assets that can increase a company’s financial value, serve as collateral, or be licensed and franchised. In many cases, the value of intangible assets exceeds that of physical assets. Thus, incorporating scents, sounds, three-dimensional forms, or textures into a portfolio expands competitive advantages.

Another significant benefit is strategic market positioning. Non-traditional marks enable companies to stand out from competitors by creating sensory experiences that foster closer consumer connections. For example, a distinctive scent in a store or a unique sound associated with a product can create emotional bonds with consumers, strengthening their perception of the brand and reinforcing loyalty.

Furthermore, protecting these marks promotes business innovation. With legal certainty, companies can confidently invest in creative developments that enhance differentiation, such as original packaging shapes, distinctive sounds, or scents, without fear of appropriation by competitors. This fosters creativity and the creation of more memorable and valuable consumer experiences.

In today’s business environment, understanding the value of intangible assets is a strategic necessity. Often, distinctive signs with real value to a company are not recognized as protectable assets, leaving important vulnerabilities. For this reason, specialized legal advice is essential to identify, evaluate, and properly protect these elements under the current Salvadoran legal framework.

At Arias, we guide companies through every stage of trademark protection. Our approach ranges from identifying traditional and non-traditional signs to designing registration and defense strategies tailored to each business’s specific needs. We invite companies to explore their protection possibilities and ensure that each distinctive element of their offering becomes a strong, functional legal asset.

Recently, we assisted a client with a fluid mark - a non-traditional trademark that, until then, had not been considered registrable in El Salvador. After analyzing the case and understanding the client’s objectives, we identified the appropriate category and provided an effective solution to protect their mark under the new legislation. This example shows how technical knowledge, combined with a strategic vision, can open opportunities that might otherwise be overlooked.

Ultimately, non-traditional trademarks represent a significant evolution in trademark law. They recognize that the distinctiveness of a product or service goes beyond traditional signs, incorporating sensory experiences and innovative ways of communicating business identity. Their protection requires compliance with strict criteria for representation and distinctiveness, as well as well-structured legal strategies to maximize their value as assets.

In conclusion, while the previous law already recognized certain non-traditional signs, the new law expands and clarifies this recognition. Now, it is possible to register not only words or figures but also colors, sounds, textures, three-dimensional shapes, and even flavors. This legal reform opens the door for companies and entrepreneurs to explore innovative ways of market differentiation, using elements that go beyond the purely visual.

As a result, trademarks can become a comprehensive experience - perceived, felt, and remembered - strengthening the bond between consumers and the products or services offered. All this takes place within a clear and modern legal framework that provides certainty and confidence, while offering the flexibility needed to adapt to new forms of innovation that shape today’s business dynamics.



The information provided by ARIAS® is presented for informational purposes only. This information is not legal advice and is not intended to create, and does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking advice from professional advisers.