Sounds and smells
This page considers sounds and smells as trademarks.
It covers -
Brand owners have increasingly sought to register sounds,
smells and colours
The essential challenge is the task of proving that the
particular sound or scent is unique and is closely associated
with the brand. Another challenge, arguably less difficult,
is the registration of the mark, with for example disagreement
in academic and industry circles about how to record a
smell and thence to deal with questions of infringement.
It is important to note that a particular aural, olfactory
or colour mark does not cover all possible uses. A trademark
might thus be issued for use of a specific smell or sound
in relation to a particular product - protected under
a discrete trademark class - rather than for every use
of that scent/sound.
Sound marks emerged in the 1950s but registration really
'took off' from the 1970s, driven in large part by emulation
and by increasing use of digital technologies.
Much registration has been 'backward', with corporate
owners seeking sound trade mark protection for sounds
- such as the roar of the MGM lion or 20th Century Fox
therme - in use over the preceding 50 years.
Examples include -
broadcaster NBC - sound of the chime used to identify
a station break (1971, US Reg. No 0916552)
Warner - "Merrie Melodies Theme" (2001, US
Reg. No 2,473,248)
York Stock Exchange - sound of its closing bell ("a
brass bell tuned to the pitch D... struck nine times
at a brisk tempo")
Rice Burroughs, Inc.- the "famous Tarzan yell"
(US Reg. No 2,210,506)
Airlines - 'ding' flight attendant tone
Telekom - "five note musical score" (US Reg.
No 2,459,405; New Zealand Reg. No 649629)
Globetrotters - basketball team's 'Sweet Georgia Brown'
theme (US Reg No 7,4219,263)
- spoken letters AT&T with a distinctive musical
flourish in background
- 'five-tone' sound registered in US, Australia and
- MGM Lion roar (US Reg No 7,3555,319)
Century Fox - drumroll (US Reg No 7,4639,776)
Warner - Looney Tunes Theme Song (US Reg No 7,6051,811)
- sound of Pillsbury Doughboy's giggle (US Reg No )
Pictures - image and sound regarding 'RKO tower' transmitting
Morse-code like signal
- default ringtone (US Reg No 3,288,274).
Australia there had been 59 applications for registration
of an aural mark as of June 2006, with 25 (including the
'Dolmio waltz' for pasta sauce and the spoken words "Ah
McCain" followed by a 'ping') being successful.
Critics have argued that aural marks are problematic.
One argument is simply that it is inappropriate to trademark
Another centres on the perceived difficulty of adequately
describing a sound mark. Some registers seek a notation
of musical notes, tones and words (the "famous Tarzan
yell" is for example identified through traditional
musical notation of the notes and pitches"). Other
registries allow an 'image' of the mark, ie inclusion
of a sound recording.
Applications to register some sounds have proved to be
contentious, whether because of questions about distinctiveness
and close association (the criteria discussed earlier
in this profile) or because of perceived reach.
Motorcycle manufacturer Harley-Davidson, for example,
sought a US trademark for the noise of its "45 degree
V-twin single crankpin motor". A Honda spokesperson
commented that "It's very difficult to imagine a
world where the sound of a running engine is an exclusive
property right", particularly in a world where many
noises sound the same. Harley eventually abandoned the
Introductions to the literature are provided by Kevin
McCormick's 2006 '"Ding" You Are Now Free to
Register that Sound' in 96 The Trademark Reporter
1101, Michael Sapherstein's 1998 'The Trademark Registrability
of the Harley-Davidson Roar: A Multimedia Analysis' in
1998 Intellectual Property & Technology Forum.
In the US scents may be trademarked if they do not serve
a functional purpose. In 1990 for example a court held
that a Californian company could register a plumeria scent
as a trademark for its sewing thread and embroidery yarn
(US Reg. No 1,639,128, subsequently abandoned).
Personal fragrances (eg the scent of a perfume) are considered
functional - without separation of the product and the
mark - and thus cannot be registered.
Practice in Europe has varied. L'Oreal successfully claimed
trademark infringement in France regarding the smell of
one of its perfumes in a dispute with a manufacturer of
'small-alikes'. That decision was reversed by a superior
A trademark in the smell of perfume has however reportedly
been accepted by courts in the Netherlands (in Lancôme
Parfums et Beauté et Cie v Kecofa, 2004).
The UK trademark register and UK courts have not accepted
perfume scent trademarks, as distinct from trademark protection
for the name and packaging of the perfume.
An application by Chanel for a Chanel No 5 olfactory
mark - described as
a scent of aldehydic-floral fragrance product, with
an aldehydic top note from aldehydes, bergamont, lemon
and neroli; an elegant floral middle note, from jasmine,
rose, lily of the valley, orris and ylang-ylang; and
a sensual feminine note from sandal, cedar, vanilla,
amber, civet and musk.
thus unsuccessful. The UK has however approvided olfactory
marks: the first successful application was by Sumitomo
Rubber for "a floral fragrance/smell reminiscent
of roses as applied to tyres".
Other examples include the -
smell of bitter beer' applied to flights for darts
aroma or essence of cinnamon' for furniture and parts
of fresh cut grass' for tennis balls.
might ask whether smell trade marks are more intriguing
than practical. Do you sniff your tyres for the scent
of crushed American Beauty rose petals, rather
than relying on a logo on the outside of the rubber?
As with sounds there has been disagreement about description
of smells in trademark registers ('elegant top note',
'sensual feminine note' etc). We are thus likely to see
increasing emphasis on mechanisms for identification such
as gas chromatography, high-performance liquid chromatography
(HPLC) and mass spectrometry (MS).
Among the literature see Helen Burton's 1995 'The UK Trade
Marks Act 1994: An Invitation to an Olfactory Occasion?”'
in EIPR, Benson, Christopher Benson's 2001 'Can
a smell be registered as a trade mark?' in IHL
and Peter Turner-Kerr's 2001 'Trade Marks: Application
to the OHIM for registration of an olfactory mark –
Case Comment' in EIPR.
(colours as trade marks)