A sound trademark is a non-conventional trademark where sound is used to perform the trademark function of uniquely identifying the commercial origin of products or services. A non-conventional trademark, also known as a nontraditional trademark, is any new type of trademark which does not belong to a pre-existing, conventional category of trade mark, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of uniquely identifying the commercial... A trademark (Commonwealth English: trade mark)[1] is a distinctive sign of some kind which is used by a business to identify itself and its products and services to consumers, and to set the business and its products or services apart from those of other businesses. ... A schematic representation of hearing. ...

In recent times sounds have been increasingly used as trade marks in the marketplace. However, it has traditionally been difficult to protect sounds as trademarks through registration, as a sound was not considered to be a 'trademark'. This issue was addressed by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights^[1], which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)). A marketplace is the space, actual or metaphorical, in which a market operates. ... WTO Logo The World Trade Organization (WTO) is an international organization which oversees a large number of agreements defining the rules of trade between its member states (WTO, 2004a). ... The WTO Agreement on Trade_Related Aspects of Intellectual Property Rights (TRIPs) is an international treaty which sets down minimum standards for most forms of intellectual property regulation within all member countries of the WTO. Specifically, TRIPs deals with copyright and related rights (ie. ...

Despite the recognition which must be accorded to sound trademarks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue.

Registration of sound marks in different jurisdictions

Australia

Graphic representation

In Australia, sound trademarks are generally acceptable if they can be represented by musical notation. According to the Australian Trade Marks Office, an application for a sound trademark which cannot be graphically represented with musical notation must include the following requirements.

• a graphic representation of the mark (eg. "CLIP CLOP MOO");
• a clear and concise description of the trademark (examples are given below);
  • The trade mark is a sound mark. It comprises the sound of dogs barking to the traditional tune "Greensleeves" as rendered in the audio tape accompanying the application.
  • The trade mark consists of the sound of two steps taken by a cow on pavement, followed by the sound of a cow mooing (clip, clop, MOO) as rendered in the recording accompanying the application.
  • The trade mark consists of the sound of a soprano voice singing wordlessly to the tune represented in the musical score attached to the application. The trade mark is demonstrated in the recording accompanying the application form.
  • The trade mark consists of a repeated rapid tapping sound made by a wooden stick tapping on a metal garbage can lid which gradually becomes louder over approximately 10 seconds duration. The sound is demonstrated in the recordings accompanying the application.
• a recording of the trademark which can be played back on media which is easily and commonly accessible.

Other requirements are set out in the Trade Marks Office Manual of Practice and Procedure issued by IP Australia [2].

European Union

In the European Union, Article 4 of Council Regulation (EC) No. 40-94 of 20 December 1993 ("signs of which a Community Trade Mark may consist") relevantly states that any CTM may consist of "any 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". In Shield mark B.V. v Joost Kist (case C-283/01)[3] the EcJ basically repeats the criteria from Sieckmann v German Patent Office (case C-273/00) that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. Jump to: navigation, search December 20 is the 354th day of the year (355th in leap years) in the Gregorian calendar. ... 1993 is a common year starting on Friday of the Gregorian calendar and marked the Beginning of the International Decade to Combat Racism and Racial Discrimination (1993-2003). ... A Community Trade Mark, or CTM, refers to any trademark which is pending registration or has been registered in the European Union. ...

This definition generally encompasses sound marks, and therefore an applicant for a CTM may use musical notation to graphically represent their trade mark. A piece of music—a tune, or a ring tone on a telephone, can they be easily registered as a trade mark (provided, of course, that it meets the Community Trade Mark tests for registrability and distinctiveness). The difficulty presented by the approach in the EU is that while tunes are capable of registration, noises are not. The sound of a dog barking or the crash of surf cannot be recorded in musical notation and sonagrams will no longer be accepted by the trademark registries in the European Community. Music notation is a system of writing for music. ... Wikibooks Wikiversity has more about this subject: School of Music Look up Music on Wiktionary, the free dictionary Wikisource, as part of the 1911 Encyclopedia Wikiproject, has original text related to this article: Music MusicNovatory: the science of music encyclopedia The Virginia Tech Multimedia Music Distionary, with definitions, pronunciations, examples... Jump to: navigation, search A telephone handset A touch-tone telephone dial Telephone Complex relay used in a telephone switching system. ... Jump to: navigation, search For other uses, see Dog (disambiguation). ... Jump to: navigation, search Look up surf on Wiktionary, the free dictionary. ...

United States

In the United States, whether a sound can serve as a trade mark:

depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck.

This was the fairly strict test applied by the US Trademark Trial and Appeal Board in the case of General Electric Broadcasting Co., 199 USPQ 560, in relation to the timed toll of a ship's bell clock. More famously, Harley-Davidson endeavoured to file as a registered trade mark the distinctive "chug" of a Harley Davidson motorcycle engine. On 1 February 1994, the company filed an application for a sound trade mark: "The mark consists of the exhaust sound of applicant's motorcycles, produced by V-twin, common crankpin motorcycle engines when the goods are in use". Nine of Harley Davidson's competitors filed oppositions against the application, arguing that cruiser-style motorcycles of various brands use the same crankpin V-twin engine which produces the same sound. After six years of litigation, with no end in sight, in early 2000 Harley Davidson withdrew their application. Jump to: navigation, search The Trademark Trial and Appeal Board (or TTAB) is a body within the United States Patent and Trademark Office (USPTO) responsible for hearing and deciding oppositions filed against trademark applications. ... The General Electric Company, or GE, NYSE: GE is a multinational technology and services company. ... Jump to: navigation, search The United States Patents Quarterly, USPQ, is a United States legal reporter covering intellectual property cases including patents, copyrights, trade secret, and trademarks from 1913 through the present. ... Italian ship-rigged vessel Amerigo Vespucci in New York Harbor, 1976 A ship is a large, sea-going watercraft, sometimes with multiple decks. ... Logo on a 2003 Harley Davidson The Harley-Davidson Motor Company (NYSE: HDI) is a manufacturer of motorcycles based in Milwaukee, Wisconsin. ... Jump to: navigation, search Imme R 100,Germany, 1948/1949 A 125 cc motorcycle, the Italian-manufactured Cagiva Planet. ... An engine is something that produces some effect from a given input. ... February 1 is the 32nd day of the year in the Gregorian Calendar. ... Jump to: navigation, search 1994 was a common year starting on Saturday of the Gregorian calendar, and was designated the International year of the Family. ... The word exhaust can mean:- A verb meaning tire out, as in After the long gallop, his horse was exhausted. ... Honda 90° transverse V-twin A V-twin is a two cylinder internal combustion engine where the cylinders are arranged in a V configuration. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ...

Other companies have had more success: MGM have registered their lion's roar, famous basketball team the Harlem Globetrotters have registered their theme song "Sweet Georgia Brown", Intel registered their three-second chord sequence used with the Pentium processor, THX has registered its "Deep Note," Federal Signal Corporation has trademarked the sound of their "Q2b" fire truck siren, and AT&T has registered the spoken letters "AT&T" accompanied by music. MGM logo Metro-Goldwyn-Mayer or MGM, is a large media company, involved primarily in the production and distribution of cinema and television programs. ... Eugene Killer Edgerson of the Harlem Globetrotters goes up for a slam dunk The Harlem Globetrotters are a comic basketball team that combines athleticism and comedy to create one of the best-known sports franchises in the world. ... Sweet Georgia Brown is the theme of the Harlem Globetrotters. ... Intel Corporation (NASDAQ: INTC) (founded 1968) is a U.S.-based multinational corporation that is best known for designing and manufacturing microprocessors and specialized integrated circuits. ... Pentium logo, with MMX enhancement The Pentium is a fifth-generation x86 architecture microprocessor by Intel which first shipped on March 22, 1993. ... Jump to: navigation, search The official THX logo. ... Jump to: navigation, search James A. Moorer. ... AT&T (formerly an abbreviation for American Telephone and Telegraph) Corporation NYSE: T is an American telecommunications company. ...

External links

• Welcome to the non-traditional Trade Mark Archives — the non-traditional trade marks archives of Ralf Sieckmann include i.a. a data base of trade marks in the field of sound, just click at "sound marks"

Notes

1. ^  TRIPs is an international treaty which sets down minimum standards of protection and regulation for most forms of intellectual property in all member countries of the WTO.