Sound marks give Tarzan something to yell about
Sonic branding is the term used when a brand makes use of sound to communicate with consumers. Growing in popularity, and taking a variety of forms such as ring tones and jingles, sound marks are increasingly popping up in the IT, automotive and media industries.
Most recently, an application to protect the famous cry that Tarzan characteristically screams as he swings through the jungle was decided in Europe. The Office for Harmonisation in the Internal Market (OHIM) refused the application on appeal; a copy of the decision can be read here.
Article 4 of the relevant Council Regulations states that a community trade mark may consist of “any sign capable of being represented graphically…provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings”. The Tarzan application included two pictures: (i) an image of a wave form representation of the sound; and (ii) a spectrograph of the frequencies of the yell. The OHIM ruling provides that “what has been filed as a graphic representation is from the outset not capable of serving as a graphic representation of the applied for sound”.
The difficulty with the approach taken in Europe is that whilst musical tunes that can be represented graphically using musical notation are clearly registrable, other noises and auditory sounds which cannot be recorded as musical notation will evidently fail.
By way of contrast, the Trade Marks Office in Australia has been quite specific about acceptability of representations and descriptions of sound trade marks. An application for a sound trade mark that cannot be represented with musical notation must include the following:
- a graphical representation of the mark, which may be a simple verbal description of the sound such as "CLIP CLOP MOO"
- a clear and concise description of the trade mark to serve as an endorsement, for example: The trade mark consists of the sound of two steps taken by cow on pavement, followed by the sound of a cow mooing as rendered in the recording accompanying the application.
- a recording of the trade mark on a medium which allows for easy replaying.
Currently, 33 sound marks have been registered in Australia but, as yet, creator Edgar Rice Burroughs' company does not appear to have sought protection for the famous cry here. Tarzan would go ape. Again.
