Safe and sound: next level registered IP protection for sounds - trade marks
When it comes to protecting a sound in Europe via intellectual property, one of the best ways to achieve this protection is through copyright. This is so, not least because copyright protection can manifest itself as soon as the sound is first recorded/devised, making the protection easy to obtain, and also because such protection can also last for a reasonable period time, such as in excess of 50 years in a number of European territories.
Though for particularly distinctive/unique sounds, whereupon hearing the sound one immediately thinks of a particular entity, trade mark protection in respect of this sound may be a worthy form of supplemental protection for consideration. Indeed, and unlike copyright protection, trade mark protection in many parts of Europe can notionally protect not just the sound itself, but also prevent the use (or registration) of sounds which are confusingly similar to the protected sound. Furthermore, and unlike with enforcing copyright, trade mark enforcement does not require any demonstration of copying by the purported infringer to establish a successful infringement claim – rather, a trade mark infringement claim may succeed if it is proven (amongst other grounds) that the average consumer is confused.
Bearing in mind that trade mark protection is limited to the form of the trade mark protected on the Register, careful consideration needs to be given however, as to how best to present the sound in a trade mark application, taking into account how the sound may be implemented/varied in use. A good example of this is the “Mission: Impossible” theme tune, where if one analyses the application of this tune across the entire film franchise, one can see that the employed tune is somewhat different for each film, even though the tunes as a collective are all otherwise unified by the same underlying melody:
- Mission: Impossible 1 (composer: Danny Elfman)
- Mission: Impossible 2 (composer: Hans Zimmer)
- Mission: Impossible - Fallout (composer: Lorne Balfe)
So what is important when looking to protect a sound with trade mark protection is to focus on the real core of the sound, that is, the core which makes the tune so distinctive and recognisable. In the above “Mission: Impossible” example, this distinctive core might be argued as being the simple arrangement of the key notes which make up the core of the theme tune, namely the note sequence of A; A; C; D; A; A; G; Ab; A, as more simply played in this video between the 00:08 and 00:11 mark. Thus in so far as trade mark protection may be considered here, protection around this core sound may be the prime area of focus.
Appreciably, some brands and franchises employ a much more consistent sound that does not significantly change over time. A good example of this is the "Marvel" theme tune. Here one might argue that one distinctive aspect of this tune is the portion between 00:02 and 00:12, or between 00:30 and 00:35, rather than the entire theme tune. In which case, trade mark protection for some of these smaller sound bites in their non-edited form may be worth consideration instead, on the grounds that these smaller sounds bites are arguably the key acoustic identifiers of the “Marvel” brand, rather than necessarily a sound trade mark which is applied for in respect of the entire theme tune (which may not always be replicated in full).
To be clear, sound trade marks need not necessarily be restricted to theme tunes, such that other distinctive sounds may also be worthy contenders for trade mark protection. A good example of this may be other much more simple, but nonetheless highly distinctive, sounds, such as the ”hum” of a lightsaber from the Star Wars franchise, or even the roar of a lion in respect of the MGM franchise relating to films. Indeed, the latter is already registered as EU trade mark 005170113, and the former is at least registered as a sound trade mark in the US as US trademark 77419246.
So for those entities employing a particularly distinctive sound which can be argued as an identifier of their brand/franchise, trade mark protection may well be worth consideration for this sound, alongside any copyright protection which may otherwise subsist in the sound. Indeed, and particularly where such sound trade mark protection is then supplemented with trade mark protection for other, related, visual brand identifiers which might typically be used alongside the sound, the resultant trade mark protection can be quite a potent enforcement tool.
