Me unregistrable, You Jane

The IPKat has come across a recent decision of the OHIM Fourth Board of Appeal, refusing registration of a sound mark represented as follows:

‘The mark consists of the yell of the fictional character TARZAN, the yell
consisting of five distinct phases, namely sustain, followed by ululation,
followed by sustain, but at a higher frequency, followed by ululation, followed
by sustain at the starting frequency, and being represented by the
representations set out below, the upper representation being a plot, over the
time of the yell, of the normalised envelope of the air pressure waveform and
the lower representation being a normalised spectrogram of the yell consisting
of a three-dimensional depiction of the frequency content (colours as shown)
versus the frequency (vertical axis) over the time of the yell (horizontal axis).’

and

The appeal and application was refused in a decision which would seem to suggest that sonograms aren't much use of representing sound marks, and that musical notation is the only option.

The Board made the following points:

* The Shieldmark case is perfectly clear. Other OHIM decisions which have sought to broaden it to sonagrams have make their comments obiter dictum. The coments in the Roar of a Lion decision were expressly dissented from.

* The wording in this case was not clear or self-contained

* The sonogram was not self-contained, clear or intelligible because it couldn't be read to produce precise sound

* It also wasn't accessible – it couldn't be retransformed by competitior into a sound. The verbal description didn't help because reader wouldn’t be able to rebut any other verbal image. While there may be specialist software available to transform a sonogram into an image, one can’t expect third party to install it on his computer. Besides, in quite forthrright terms, the Board held that it was not clear that software worked anyway.

* The representation was not self-contained if additional software was needed to read it.

* The fact that much of the public was familiar with the Tarzan yell didn't rectify the problem with graphic representation (though it could have been relevant to distinctiveness).

* The Board rebutted an attack on the accessibility of musical notation, holding that it equivalent to a language, and understood by a significant percentage of the public.

The IPKat says that if sonograms aren't sufficient for graphical representations, that leaves only musical notation, which would limit sound marks to snatches of music.