European trademark law swinging from vines
Originally posted 2011-06-13 23:10:33. Republished by Blog Post Promoter
Tarzan’s distinctive yell cannot be registered as a trademark because it is almost impossible to represent graphically. Sounds can be registered as trademarks, but the ruling (pdf) could limit that to sounds that can be written in standard musical notation.Tarzan was created by Edgar Rice Burroughs and the application to register as a trademark the sound of the jungle resident’s scream was made by Edgar Rice Burroughs Incorporated. The Office for Harmonisation in the Internal Market (OHIM) refused the application on appeal.
The application had included two pictures said to represent the sound of Tarzan’s call, one an image of a wave form representation of the sound, the other a spectrogram of the frequencies of the yell.
“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,” said the OHIM ruling. “The examiner was therefore correct to refuse the attribution of a filing date.”…
The OHIM ruling creates a problem for people trying to register sound marks that are not music, since it said that musical notation is the valid way to express sound files and some sounds cannot be expressed in that way.
Yes, problem indeed. The applicant even tried to describe the yell verbally:
‘The mark consists of the yell of the fictional character TARZAN, the yell consisting of five distinct phases, namely sustain, followed by ululation,followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency, and being represented by therepresentations set out below, the upper representation being a plot, over the time of the yell, of the normalised envelope of the air pressure waveform and the lower representation being a normalised spectrogram of the yell consisting of a three-dimensional depiction of the frequency content (colours as shown) versus the frequency (vertical axis) over the time of the yell (horizontal axis).’
In other words, a Tarzan yell. Indeed, the decision sets forth, as one argument of the appeal, “[Applicant] maintains that it is perfectly clear what the present mark is. It is the sound of the fictional character Tarzan yelling, a sound that is well-known throughout the European Community. Virtually everybody would be able to tell you ‘what is the Tarzan yell?’. ” Yet as the tribunal notes, “everybody knows” is not evidence; and the esoteric graphic depictions of the yell proffered as specimens are not meaningfully amenable to reproduction, much less ready recognition. What good is a trademark registration when the public cannot be put on actual notice, on investigation, of what the mark is?
The solution would seem to be an amendment of the relevant statute permitting the use of sound files, which in this day and age should be roughly as accessible as visual files, as trademark specimens. If we accept the premise of sound trademarks at all it’s hard to imagine why they aren’t not only permitted, but required as the most preferred form of exhibit. I’m going to have to ask Jane what I’m missing here.