November 2007
Now we can All Yell like Tarzan
An attempt to register Tarzan’s distinctive Ahhh-ah-ahhhh!, ahhhh-ahhhh! yell has been rejected by the European trade mark authority, OHIM. The objection is due to the difficulties of representing the mark visually as is required by OHIM.
Whilst most trade marks consist of words or pictures, there is no theoretical objection to registering sounds, smells or even gestures. The main principled requirement for a trade mark is that it is capable of distinguishing the products or services of one producer from those of another. When you hear the Tarzan yell, then you know instantly what it represents.
However, so that people searching trade marks can tell what the mark consists of, it is practically necessary for the mark to be capable of being represented graphically. In the case of sound this is normally done by musical notation, but Tarzan’s yell is far from a symphony.
In fact the owners of the rights in Tarzan found it impossible to put the yell into musical notation and so instead submitted two pictures said to represent the sound. Unfortunately, neither of these was of a longhaired man swinging though the trees in a loincloth. The pictures consisted of representations of the sound waves that make up the call.
Briffa’s comment
The problem with using sound waves to represent sound for a trade mark is that a person looking through the register wouldn’t be able to easily reproduce the sound and establish what the mark is. This would mean that people couldn’t be certain whether their actions would be infringing or not.
The representation is not self contained. It would require some specialist equipment to reproduce and identify it. However it could easily be argued that even musical notation can require specialist equipment to reproduce it, especially if a particular instrument is normally used. Equally, smells can be registrable by using chemical notation and this also requires specialist equipment to reproduce.
There are very valid reasons for the decision of OHIM but it would be a shame if something so obviously distinctive was denied trade mark status on a technicality.
For more information contact Peter Mason