By Jayne Durden ‑ August 11, 2016
Jingle all the way: Trademarking sound
Using sound as a unique signifier for your brand is not a new idea. Businesses have been investing in jingles and catchphrases for decades and production companies have even trademarked iconic film sounds. LucasFilm trademarked the "rhythmic mechanical human breathing created by breathing through a scuba tank regulator" to secure IP rights for the sound of Darth Vader’s breathing, and the “oscillating humming buzz” of a lightsaber. Trademarking sounds can stop individuals benefitting – financially or otherwise - from iconic sounds or jingles, but is a sound trademark easy to secure?
The criteria for a sound trademark differs between jurisdictions and can be easier to obtain in some countries. In Australia sound trademarks are generally accepted if they can be represented with a musical notation. However in the European Union, any Community Trademark (CTM) may consist of “signs 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.” This definition can encompass sounds as a CTM applicant could use musical notations to graphically represent their sound. In the United States the test for whether a sound can serve as a trademark depends on the “aural perception of the listener” and whether the sound is “so inherently different or distinctive that it attaches to the subliminal mind of the listener.”
China, the country with the highest number of trademark registrations in the world in the last 13 years, recently registered its first sound trademark. Under revised trademark law, a single sound can be applied as a trademark if it is used to uniquely identify the commercial origin of a product or service. China's top legislature revised the law to allow sound to be registered as a trademark in 2013 and has received 450 applications since January, with the signature tune of China Radio International the first to be approved.
Registering aural trademarks is not easy. You must have a significant market presence to argue that a sound is used to distinguish your business and is subliminally recognisable to listeners. Harley-Davidson famously tried to secure IP protection for the ‘purr’ of its V-twin motorcycle engine. After battling opposition to its trademark application from other motorcycle makers for almost six years, the company grew tired of being in legal limbo with no end in sight – finally withdrawing its request. The company could not make the argument that the ‘thumping’ sound of a revving Harley Davidson was distinctive enough to warrant a sound trademark. By 1998 23 sound trademarks had been issued in the US. Since then, more companies have been able to lock down ‘sound marks’ but it is still a rare occurrence.
Sounds are often created during a company’s marketing process, and these tunes are technically copyrighted once a tangible version is made. Instead of attempting to navigate trademark legislation, it is easier to register a copyright for your sound. A trademark is active for as long as it is renewed and used, while a copyright expires 60 years after the death of its creator. If a business is growing at such a speed that the after-death limitation could be an issue, a sound trademark application could be filed before it lapses into the public domain. Until this time a registered copyright will allow businesses to enforce ownership of the sound if someone else attempts to use it.
Creators will always strive to secure their IP rights and enforce the strongest form of IP protection to stop the theft of ideas. Attempting to secure sound trademarks is often a waste of time and resources. Unless a sound can be played to an individual and they immediately know its origin, it is unlikely you can argue your company has penetrated their subliminal conscience. Sound trademarks are an increasing development in marketing, and there is a strong case for protecting the rights of IP owners to register a sound, but for most businesses a copyright will offer more than enough protection.
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