Chances are you can still recall a jingle from your childhood – a memorable snippet of song advertising your favourite cartoon, fast-food restaurant or a coveted toy.  Sound can be a very effective way for marketers to distinguish their products from those of competitors.  Think of the way the Oscar Mayer jingle gets lodged in your brain (“My baloney has a first name; it’s O-S-C-A-R….”  If you really want to hear it again, just click here).

Sound can function — and can be registered — as a trade-mark.  Registering sound as a trade-mark is a relatively recent phenomenon, and as a result only a small fraction of registered trade-marks are “sound marks”.  One famous example is the effort by Harley-Davidson to register “the exhaust sound of applicant’s motorcycles, produced by V-twin, common crankpin motorcycle engines when the goods are in use” in the United States.  Predictably, this application was opposed by 9 competing motorcycle manufacturers. The opponents asserted that the exhaust sound was purely functional and not eligible to be registered as a trade-mark.

Internationally, trade-mark practice varies widely and local counsel is required.  In the United States, there are only about 100 registered sound marks.  In Canada, this practice is still in its infancy.  In Australia only 25 have been registered.  Under the European Community Trade-mark regime, there are 31 registered sound marks.  Interestingly, the trade-mark laws of some countries, such as Egypt, China and Saudi Arabia, expressly prohibit the registration of sound marks. 

For a Canadian example, Tellme Networks, Inc. (a US company) applied to register a sound mark consisting of “a musical jingle in the key of C, comprised of two notes in sequence of F, C and any relative equivalent thereof.”  The description of the mark makes it very difficult to determine what the mark is without musical training, but this type of description satisfies the application requirements. 

With increasing competition and the use of more imaginative ways for advertisers to reach their targets, sound marks and other non-traditional marks will likely increase in importance, particularly given the power of sound or music to transcend cultural or language barriers.

Calgary – 14:05 MST