ABSTRACT
Marketing trends increasingly permeate trademark law and redefine how consumers perceive them: not merely as identifiers of commercial origin, but as experiences, atmospheres, and symbolic cues. This shift compels the law to extend protection to non-traditional signs, because consumers are neurologically predisposed to register and recall distinctive sensorial configurations, thereby enabling such features to fulfil the essential trademark function of source identification. Neuroaesthetics shows that human reactions to trademarks are shaped by how brains process symbols and feelings – modern perception patterns that consumers have. In this way, cognitive science reinforces the doctrinal plausibility of extending trademark protection to experiential and affective signs. Copyright protects creative expression, but it refuses to extend protection to ‘vibe’, to preserve a free cultural common. The abstract, intangible feeling that a vibe conveys is beyond the reach of copyright law. Trademark, by contrast, might intervene once a ‘vibe’ functions as a source indicator, justified not by rewarding creativity but by preventing consumer confusion. Novel and market-oriented analysis of EU trademark law critically examines the expansion of trademark protection to non-traditional signs and its effects on competition, innovation, and digital markets
Article 4 EUTM allows registration of sound, motion, pattern, and multimedia marks, reflecting the EU’s explicit move toward multisensory trademark law, tracking the evolution of consumer perception. Trademark protection can play a constructive role in shaping markets by encouraging culturally grounded and ethically attentive branding practices, rather than incentivizing the extraction or enclosure of shared cultural meaning. As the nature of trademark law evolves, its rationale may be recalibrated to recognize when experiential ‘vibes’ genuinely function as indicators of origin, while affirmatively supporting responsible consumption, cultural respect, and the objectives of a circular economy. In this way, trademark protection has the potential to reinforce sustainable value creation—rewarding narratives of care, durability, and stewardship—rather than amplifying patterns of unsustainable demand.
Zielkiewicz, Anna, Can you Trademark a Vibe? The Architecture of Origin: Multisensory Signs and the Limits of EU Trademark Law (May 15, 2026), Innovation Law and Ethics Observatory (ILEO) Research Paper Series No 26-03; Jagiellonian University Journal of IP Law (Zeszyty Naukowe Uniwersytetu Jagiellońskiego), Wolters Kluwer, 1/2026, pp 18-63.
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