Sound trademark

A sound trademark is a non-conventional trademark where sound is used to perform the trademark function of uniquely identifying the commercial origin of products or services.

In recent times, sounds have been increasingly used as trademarks in the marketplace. However, it has traditionally been difficult to protect sounds as trademarks through registration, as a sound was not considered to be a 'trademark'. This issue was addressed by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights,^[1] which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings" (article 15(1)).

Despite the recognition which must be accorded to sound trademarks in most countries, the graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and different countries have different methods for dealing with this issue.

Sound branding

Sound branding (also known as audio branding, music branding, sonic branding, acoustic branding or sonic mnemonics) is the use of sound to reinforce brand identity. Sound branding is increasingly becoming a vehicle for conveying a memorable message to targeted consumers, taking advantage of the powerful memory sense of sound.

Sound logos

The sound logo is one of the tools of sound branding, along with the jingle, brand music, and brand theme. A sound logo (or audio logo or sonic logo) is a short distinctive melody or other sequence of sound, mostly positioned at the beginning or ending of a commercial. It can be seen as the acoustic equivalent of a visual logo. Often a combination of both types of logo is used to enforce the recognition of a brand. An example is the T-Mobile logo and ring tone composed by Lance Massey, or the Intel logo composed by Walter Werzowa.^[2]

The sound logo leads to learning effects on consumer's perception of a certain product. A melody is the most memorable sequence of sound, since, when a melody starts, the human brain automatically expects the ending. However, some brands realise the importance the sound their brand can make and attempt to capitalize on its own uniqueness. A good example here is motorcycle brand Harley Davidson, which, in 1994, filed a sound trademark application for its distinctive V-twin engine sound. It realised that if it could capture its own sound, it could distinguish the brand at every point of customer interaction.^[3] The most essential qualities of a sound logo are uniqueness, memorability, and flexibility.

Some widely known examples include:

• Intel's "Intel inside" musical jingle"^[4] (composed by Walter Werzowa)
• The NBC chimes
• AT&T's sonic logo, which sounds almost like the Toreador song, created by Man Made Music^[5]
• THX's Deep Note
• Fourscore, the four note audio ident used by Channel Four
• McDonald's Corporation's 5-note "i'm lovin' it" jingle
• The 20th Century Fox Fanfare (composed by Alfred Newman)
• The Nokia tune
• The Macintosh startup chime
• "The bongs" on ITV News at Ten
• The Xbox 360 startup sound/swoosh, created by Audiobrain
• The excerpt of the allegro of Bach's Brandenburg Concerto No. 5 used by American Public Media (and formerly Minnesota Public Radio, their parent company) as their audio logo for public radio programming distributed by them
• The first four notes of O Canada, used in Government of Canada advertising as well as in the CBC Television ID.

Radio and television stations create their own audio identities using a melodic themes to strengthen their brand. Notable radio examples include the short variations of the BBC Radio 2 or Classic FM jingles. In recent years, television station idents have also introduced their own audio identities to strengthen their brand recognitions.^[6]

There are typically fours steps involved in creating a sound logo:

1. The Concept phase, where the sound logo creator composes a number of drafts based on the client's input. The sound logo drafts are then reviewed and tested.
2. The Polishing phase, where further adjustments and tweaks are made to the chosen logo
3. The Integration phase, where the sound logo is adapted to the client's required usage (such as television advertising, logo animations, specific campaigns and similar)
4. The Buyout phase, where all applicable usage rights are handed over to the client.^[7]

Other forms of sound branding

Sound branding encompasses many other tactics intended to convey organizational or product identity (who an organization is and what it stands for); enhance consumers' experience of a product or service; or extend an organization's relationship with its audience.

Creating a brand experience using sound is also within the area of sound branding, as brands now look to engage with their customers on a much deeper level. The opportunities for creating a sound branding experience that conveys a brand essence and soul is possible. Bentley Motors recently looked to create a brand experience by replacing all interior mechanical sounds with sound that had been created for their Continental GT car.^[8]

Sound design for mobile phones, ATMs, laptop computers, PDAs, and countless other devices can improve the user experience by making tasks easier and more enjoyable. These sounds can also reveal something about the company that created the experience (and, in the case of personalized ringtones, something about the user him/herself). Manufacturers, software designers, and marketers who create these sonic experiences purposefully and with a view toward expressing something of themselves are practicing sound branding.

Another form of sound branding involves an organization's public association with or sponsorship of a musical enterprise—a non-profit music organization, for instance, or perhaps a music artist or group of artists. For example, some companies completely unrelated to music offer free music downloads on their websites. Ostensibly intended to demonstrate the sponsoring organization's good will from a cultural patronage stand point, practices like these also brand the organization by calling public attention to its beliefs, its values, and its aesthetic sensibilities.

It's arguable that sound branding is now using ‘subliminal’ brand placement in pop song lyrics to echo a corporate slogan, a company’s ‘Unique Selling Point’ or ‘brand values’ (rather than the ‘old fashioned’ mentioning of brands / products directly). An example of this would be Pharrell Williams’ 2005 song ‘Can I Have It Like That’ (featuring Gwen Stefani), with the chorus which echoed the Burger King advertising slogan "Have It Your Way".^[9]

In a retail sense, sound branding extends to the use of music and soundscapes in order to enhance the consumer experience and influence behaviour. British department store chain Selfridges is one of the notable brands to have enjoyed success with this approach, creating distinct consumer ‘zones’ within its stores, which change visually and sonically so customers know they have passed into a new department. These zones are often tailored to suit a particular product, customer profile, season or even times of the day and week.^[10]

Sound branding also encompasses the use of targeted audio messages by organisations to communicate with customers over the telephone, known as on-hold marketing or on-hold messaging. These messages are typically deployed on an organisation's interactive voice response (IVR) switchboard system or when customers are placed on hold and incorporate short, informative voice messages often accompanied by music.

A study commissioned by audio branding specialist PH Media Group provided insight into consumer perceptions of on-hold marketing. It revealed 70% of consumers are put on hold for more than 50% of their calls and 68% of consumers are put on hold for longer than one minute. When on hold, 73% of callers want to hear something other than beeps or silence and 76% preferred to hear something other than muzak.^[11][12]

Registration of sound marks in different jurisdictions

Australia

Graphic representation

In Australia, sound trademarks are generally acceptable if they can be represented by musical notation. According to the Australian trademarks Office, an application for a sound trademark which cannot be graphically represented with musical notation must include the following requirements.

• a graphic representation of the mark (e.g. "CLIP CLOP MOO");
• a clear and concise description of the trademark (examples are given below);
  • The trademark is a sound mark. It comprises the sound of dogs barking to the traditional tune "Greensleeves" as rendered in the audio tape accompanying the application.
  • The trademark consists of the sound of two steps taken by a cow on pavement, followed by the sound of a cow mooing (clip, clop, MOO) as rendered in the recording accompanying the application.
  • The trademark consists of the sound of a soprano voice singing wordlessly to the tune represented in the musical score attached to the application. The trademark is demonstrated in the recording accompanying the application form.
  • The trademark consists of a repeated rapid tapping sound made by a wooden stick tapping on a metal garbage can lid which gradually becomes louder over approximately 10 seconds duration. The sound is demonstrated in the recordings accompanying the application.
• a recording of the trademark which can be played back on media which is easily and commonly accessible.

Other requirements are set out in the trademarks Office Manual of Practice and Procedure issued by IP Australia.^[13]

European Union

In the European Union, Article 4 of Council Regulation (EC) No. 40-94 of 20 December 1993 ("signs of which a Community trademark may consist") relevantly states that any CTM may consist of "any signs capable of being represented graphically...provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings". In Shield Mark BV vs Joost Kist (case C-283/01) the EcJ basically repeats the criteria from Sieckmann v German Patent Office (case C-273/00) that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.^[14][15]

This definition generally encompasses sound marks, and therefore an applicant for a CTM may use musical notation to graphically represent their trademark. A piece of music—a tune, or a ring tone on a telephone—can be easily registered as a trademark (provided, of course, that it meets the Community trademark tests for registrability and distinctiveness). While tunes are capable of registration, before 2005 noises were not. The sound of a dog barking or the crash of surf cannot be recorded in musical notation and sonagrams were not accepted by the OHIM trademark registry. A change in legislation occurred in 2005 so that now the Office accepts sonograms as a graphical representation of a trademark if they are accompanied by an MP3 sound file when filing a trademark electronically.^[16]

United States

In the United States, the test for whether a sound can serve as a trademark "depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck".

This was the fairly strict test applied by the US Trademark Trial and Appeal Board in the case of General Electric Broadcasting Co., 199 USPQ 560, in relation to the timed toll of a ship's bell clock.

More famously, Harley-Davidson attempted to register as a trademark the distinctive "chug" of a Harley-Davidson motorcycle engine. On February 1, 1994, the company filed its application with the following description: "The mark consists of the exhaust sound of applicant's motorcycles, produced by V-twin, common crankpin motorcycle engines when the goods are in use." Nine of Harley Davidson's competitors filed oppositions against the application, arguing that cruiser-style motorcycles of various brands use the same crankpin V-twin engine which produces the same sound. After six years of litigation, with no end in sight, in early 2000, Harley-Davidson withdrew their application.^[17]

Other companies have been more successful in registering their distinctive sounds: MGM and their lion's roar; the NBC chimes; famous basketball team the Harlem Globetrotters and their theme song "Sweet Georgia Brown"; Intel and the three-second chord sequence used with the Pentium processor; THX and its "Deep Note"; Federal Signal Corporation and the sound of their "Q2B" fire truck siren; AT&T and the spoken letters "AT&T" accompanied by music; RKO with a combined moving image and sound mark depicting the RKO Pictures radio tower transmitting a Morse-code like signal; and 20th Century Fox with the very famous fanfare composed by Alfred Newman.

Notes

References

• Bronner, Kai / Hirt, Rainer (2009): Audio Branding. Brands, Sound and Communication, Nomos, Baden-Baden. ISBN 978-3-8329-4352-3
• Bronner, Kai / Hirt, Rainer (2007): Audio-Branding. Entwicklung, Anwendung, Wirkung akustischer Identitäten in Werbung, Medien und Gesellschaft [Development, Usage and Effect of Acoustic Identities in Advertising, Media and Society], Verlag Reinhard Fischer, München (German, 2 articles in English).
• Communicate magazine (2010): Sonic Branding, Cravenhill Publishing
• Groves, John (2008): "Sound Branding – Strategische Entwicklung von Markenklang". Marken-Management 2008/2009, - Jahrbuch für Strategie und Praxis der Markenführung, Henning Meyer (Ed.), Deutscher Fachverlag 2007. ISBN 978-3-86641-121-0
• Groves, John (2011): "ComMUSICation – From Pavlov’s Dog to Sound Branding" (English). Editor: Oak Tree Press, Cork, Ireland, 2011. ISBN 978-1-78119-000-5
• Jackson, Daniel (2004): Sonic Branding: An Introduction, Palgrave Macmillan.
• Kusatz, Herwig (2007): Akustische Markenführung – Markenwerte gezielt hörbar machen, in: transfer – Werbeforschung & Praxis, 1/2007, S. 50-52.
• Langeslag, Patrick/ Hirsch, Wilbert (2004): Acoustic Branding: Neue Wege für Musik in der Markenkommunikation, in: Brandmeyer, K./ Deichsel, A./ Prill, C. (Hrsg.): Jahrbuch Markentechnik 2004/2005, Deutscher Fachverlag, Frankfurt am Main
• Ringe, C. (2005): Audio Branding, VDM Verlag Dr. Müller, Berlin (German).
• Spitzer, Manfred (2005): Musik im Kopf – Hören, Musizieren, Verstehen und Erleben im neuronalen Netzwerk, 1. Aufl., 5. Nachdr., New York : Schattauer (German).
• Steiner, Paul (2009): Sound Branding – Grundlagen der Akustischen Markenführung, Gabler Verlag, Wiesbaden, ISBN 978-3-8349-1639-6
• Treasure, Julian (2007): Sound Business, Management Books 2000.
• Andrew, Diey (2009) Creative Review primer on designing sonics for products

Further reading

• "A Quacking Kazoo Sets Off a Squabble" article by Jesse McKinley in The New York Times June 2, 2009

External links

• Audio Branding Academy: What is Audio Branding?
• The Non-Traditional Trade Mark Archives
• The fresh version of Non-Traditional Trade Mark Archives under publications
• Article on the registration of sound trademarks in the European Union

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