Feeds

Tarzan's yell must be written in music for trademark registration

Application denied on appeal

SANS - Survey on application security programs

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."

All kinds of things can be protected as registered trade marks, according to trade mark attorney Lee Curtis of Pinsent Masons, the law firm behind OUT-LAW.COM. "When people think of trademarks they generally think of words or logos, and indeed the vast majority of registered trademarks are made up of simple word marks and logos," he said. "However, in theory a registered trademark can consist of anything which distinguishes one undertaking from that of another undertaking."

"The Intel and Direct Line jingles have been registered as trademarks; the shape of a Coca Cola bottle is a registered trademark and even the gesture of person touching their nose has been registered as a trademark by the Derbyshire Building Society," said Curtis.

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.

Curtis said that the ruling covers territory which has already been controversial. He said that some previous cases "had suggested that the European Court of Justice (ECJ) would accept that a non-musical sound mark could be adequately represented in a sonogram, which is a three-dimensional pictorial representation of a sound".

"However, the Board of Appeal decision of the Community Trade Mark Office regarding the attempted registration of [non musical sounds] seems to suggest that sonograms are not acceptable. The Board of Appeal clearly states that a sonogram does not fulfil the Sieckmann test, as in contrast to musical notation, most people cannot 'read' sonograms," he said.

The 'Sieckmann test' is a result of Ralf Sieckmann's attempt to register a smell as a trademark. In that case, heard by the ECJ, a seven-point test for trademark registration was established. Trade marks under this test had to be: clear, precise, self-contained, easily accessible, intelligible, durable and objective. This test has been used since then to decide if something is trademark-able, including in the case of sound files.

OHIM said that the pictures produced by Edgar Rice Burroughs Inc. were not self-contained because they could not be used to produce a sound. They were not clear or intelligible either, it said.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

3 Big data security analytics techniques

More from The Register

next story
Lavabit loses contempt of court appeal over protecting Snowden, customers
Judges rule complaints about government power are too little, too late
Don't let no-hire pact suit witnesses call Steve Jobs a bullyboy, plead Apple and Google
'Irrelevant' character evidence should be excluded – lawyers
Record labels sue Pandora over vintage song royalties
Companies want payout on recordings made before 1972
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Edward Snowden on his Putin TV appearance: 'Why all the criticism?'
Denies Q&A cameo was meant to slam US, big-up Russia
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
Judge halts spread of zombie Nortel patents to Texas in Google trial
Epic Rockstar patent war to be waged in California
German space centre endures cyber attack
Chinese code retrieved but NSA hack not ruled out
APPLE FAILS to ditch class action suit over ebook PRICE-FIX fiasco
Do not pass go, do cough (up to) $840m in damages
prev story

Whitepapers

Mainstay ROI - Does application security pay?
In this whitepaper learn how you and your enterprise might benefit from better software security.
Combat fraud and increase customer satisfaction
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Top three mobile application threats
Learn about three of the top mobile application security threats facing businesses today and recommendations on how to mitigate the risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.