Sound and Smell Trademarks

When most people think of trademarks, they think of words like Coke® or logos like the Nike® swoosh but trademarks can be anything that tells you where a product or service came from, like the shape of a bottle or building, or a sound or smell.

We can track the rise of sound and smell trademarks because they are filed under “Mark Drawing Code 6” for “situations for which no drawing is possible.” The first application under Mark Drawing Code 6 was filed in 1947. Here’s how the trademark is described:

The mark comprises the musical notes G, E, C, played on chimes.

Can you figure out what this very familiar trademark is just from the description? If not, try singing or whistling it or you can just check out the answer below.

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There were only two applications for sound and smell trademarks filed in the 1940s.

There was a total of twenty filed from 1950 through 1989, then things really took off.

So far in the 2010s, there have been 308 applications filed for “situations for which no drawing is possible.”

You are immersed in these sounds all day. Can you identify these familiar sound marks? (Answers are below.)

 

How many could you guess? How many others can you think of?

 

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The musical notes played on chimes is the NBC trademark.

The other sound marks are:

  • An Apple® computer booting up.
  • The THX® sound system for theaters.
  • The Pillsbury® Doughboy® giggling.
  • The Tarzan yell.

You Aren’t Clever Enough to Get Our Trademark

Radios were once all the rage. Shacks were once a cool place to shop, but in the 21st century no one wants to shop at RADIO SHACK®.

Meet the “Radio Shack Problem“: A descriptive trademark that holds you back when markets and social trends move on.

Dress barn.jpg

This ad campaign by DRESS BARN® attempted to overcome a self-inflicted marketing wound by claiming that it’s really the customers who are too dense to get it.

OVERSTOCK.COM® is spending tons on advertising to convince customers that the word “overstock” in their name is just a great big misunderstanding and customers certainly shouldn’t think of them as an “overstock” company.

Rice Krispies

2-pound Rice Krispie Treat®

A recent trip to my local IT’SUGAR® showed they’re on track to become a Radio Shack Problem. IT’SUGAR sells candy bars the size of coffee tables. They also sell tchotchkes that aren’t made of sugar. Pretty soon they’ll be running ads to let everyone know they sell both edible and non-edible chazerei.

Non-sugar Chazerai

Tchotchkes

Don’t be a Radio Shack Problem. Pick a trademark that’s suggestive so it will stand the test of time: NEST®, ROOMBA®, APPLE®, GOOGLE®, AMAZON®. Those brands will go anywhere, anytime and do anything you need them to do.

The owners of those trademarks never have to berate customers for not understanding their brand because those companies didn’t mislead their customers in the first place.

 

Thanks to Liz B. and Max F. for sending stuff that suggested this post.

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The Right to Poke Fun

My Other Bag prints sketched images of iconic handbags onto canvas totes. The bags are brilliant, funny, and flattering.

Louis Vuitton sued My Other Bag for trademark infringement.[1] The courts ruled for My Other Bag.[2]

It’s incredibly hard to properly parody a trademark. For the joke to work, the image of the trademark being parodied has to be recognizable. But, if it’s too convincing, you’re infringing. As the Court of Appeals said, My Other Bag managed to convey “two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody.”[3]

A few years ago, Louis Vuitton sued Warner Brothers over a joke in a movie. The Hangover: Part II included a scene where a character was established as an uncool wannabe by showing him carrying a knockoff of a Louis Vuitton bag. Louis Vuitton lost that case, too.

If you own a famous trademark, it’s important to protect your rights, but it’s equally important to have a sense of humor so you can tell the difference between infringement and permissible parody.

In both the Warner Brothers and the My Other Bag cases, the viewer had to acknowledge that Louis Vuitton was a highly desirable, iconic, luxury brand and that the thing she was looking at wasn’t an actual Louis Vuitton. That’s the key to the distinction.

If Louis Vuitton had a sense of humor, it could avoid looking like a bully and get free favorable publicity. Sounds like a good outcome for everyone to me.

 

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[1] The suit also included a claim for copyright infringement. I’m not going to discuss that here, except to say that it was shot down by the court, too.

[2] The United States District Court for the Southern District of New York (Jesse M. Furman, Judge) granted My Other Bag a summary judgment on all claims on January 8, 2016. The United States Court of Appeals for the Second Circuit affirmed the judgment as to all claims on December 22, 2016.

[3] Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 503 (2d Cir. 1996) (quoting Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc., 886 F.2d 490, 495 (2d Cir. 1989)).

Photo copyright My Other Bag. Used with permission.

Buildings, Bottles and Pockets

Trade dress can be a trademark and can be registered.

How nice. What the hell is trade dress?

Trade dress is the visual appearance of a product or its packaging that’s not functional.

Great. Clear as my aunt’s cataracts.

Let’s try some examples.

A non-functional aspect of a building can be trade dress. You can’t register the fact that your building has a roof, because buildings need to have roofs, but the blue roof of an IHOP® or the orange roof of Howard Johnson’s® can be (and are) trademarks because roofs don’t have to be a color.

Apple Store

 

My favorite “building marks” are the glass cube Apple® Store and Al Johnson’s Swedish Restaurant and Butik® that registered “goats on a roof of grass.”

 

 

Did you say “goats on a roof of grass”?

Yes. Yes, I did.

Goats on roof

Urban Outfitter door

 

There’s also the door of seemingly broken glass used by Urban Outfitters® in some locations.

What else can be trade dress besides buildings?

Hendricks

The shape of a bottle has been and continues to be important for both beverages and perfumes. Excellent examples are the shape of a Coke® bottle, the shape of a Hendricks® gin bottle, and the iconic shape of the bottle for Chanel No. 5®.

Levi pocket

 

Pockets on pants are functional, so you can’t have trademark rights in pockets, but you can register the shape of pockets, the stitching, and the placement of the label with the pocket. Here’s Levi’s® registered trademark.

Trade dress. Cool stuff, huh?

 

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