Sound Marks

David Canton in his post today praised the IT.CAN conference. I, too, attended, and I agree: it’s the one to catch for IT/IP folks. Among the many things that caught my ear was a small reference to sound marks — that is, trade marks for the ear rather than the eye.

These are new to me, and relatively new to Canadian jurisprudence, though when I thought about it for a moment I realized that they were a perfectly sensible addition to the IP roster. (For some support for that conclusion, see a 2010 post on IP Osgoode — and consider its reference to “smell” marks and “taste” marks, to stretch your mind a little.) Increasingly we live in a constructed aural environment, partly by the design of others but more and more out of our own choice. Technology, of course, is once again to blame or to praise in this. Think of the people you see who spend much of their day hooked to earbuds and a white cord.

Apparently, Smart and Biggar registered a sound mark with the Canadian Trade-Marks Office two decades ago; but thereafter the Office refused to register any further sound marks. Until, that is, their changed policy, reflected in their practice notice of March 28, 2012, stating:

The application for the registration of a trade-mark consisting of a sound should:

• state that the application is for the registration of a sound mark;
• contain a drawing that graphically represents the sound;
• contain a description of the sound; and
• contain an electronic recording of the sound.

I thought you might be interested in an example, so here’s the data on Tarzan’s Yell, the first mark that comes up when you search for [sound] in the trade-mark database:

TRADE-MARK (Sound):

 

Listen to sound file (MP3 File – 199 Kb – 10 seconds)

MARK DESCRIPTIVE REFERENCE:
TARZAN YELL (Sound only)

TRADE-MARK DESCRIPTION:
The mark consists of the sound of the famous TARZAN yell. The mark is a yell consisting of a series of approximately ten sounds, alternating between the chest and falsetto registers of the voice, as follows -1) a semi-long sound in the chest register, 2) a short sound up an interval of one octave plus a fifth from the preceding sounds, 3) a short sound down a major 3rd from the preceding sound, 4) a short sound up a major 3rd from the preceding sound, 5) a long sound down one octave plus a major 3rd from the preceding sound, 6) a short sound up one octave from the preceding sound, 7) a short sound up a major 3rd from the preceding sound, 8) a short sound down a major 3rd from the preceding sound, 9) a short sound up a major 3rd from the preceding sound, 10) a long sound down an octave plus a fifth from the preceding sound.

Just for fun, you might want to look at the Wikipedia entry on the Tarzan Yell, because it seems the US trademark has been refused because the graphic depiction is inapt or insufficient.

[Notice that I’ve spelled “trade mark” in three different ways in this post. That’s because the English-speaking world can’t seem to agree on the proper orthography. The US uses “trademark”; the UK and the rest of the world except Canada uses “trade mark”; Canada alone inserts a hyphen between the parts.]