To register a trademark, you must be able to represent the mark graphically. This requirement applies to sounds and scent trademarks as well. But how can you trademark a sound or a scent in a graphic? Basically, this means you will need to be capable of representing the scent or graphic by using symbols. These symbols can be in the form of text or drawings, or a combination of both. For assistance in preparing this graphical representation when you decide to apply, speak with a trademark specialist. It’s difficult enough getting your standard trademark approved, let alone one that is for a sound or a scent!
Representing a soundmark
Typically, to have a sound trademark adequately represented, you will need to provide the examiner with an accurate description of the sound. What is the melody like? What instruments are being used? What are the elements that make up the sound? It’s also possible to represent the sound using a musical notation. A description of the sheet music must be clear and unambiguous –something similar to ‘this trademark contains a melody of two overlapping instruments, the drums and the saxophone’. In any case, the more detailed the description, the more likely you will be able to register a trademark.
A sound trademark could also be represented using words or onomatopoeia, such as Zip, Whistle or Meow. For example ‘the trademark is made up of two cats meowing over the top of a chorus of people whistling’. This description is filed on the trademarks register as supporting material (also known as an endorsement).
Here is an example of the O’Brien soundmark:
Endorsement: This is a sound mark. It consists of the vocal harmonisation of the letter ‘O’ followed by the word ‘O’BRIEN’ rendered as ‘O’, ‘O’, ‘O’, ‘O’BRIEN’, as recorded on the compact disc accompanying the application.
Representing a scent trademark
Scent trademarks are a little trickier to register because many smells are very difficult to represent graphically. Like with soundmarks, the more precise the description of the scent, the more likely the trademark examiner will accept it.
Scent trademarks must be endorsed by a graphic representation, which is usually a description of the smell.
Here is an example of a scent trademark owned by E-Concierge that applies to their eucalyptus-scented golf tees:
Endorsements: The mark consists of a Eucalyptus Radiata scent for the goods
Things to consider
Like with all trademarks, if the sound or scent that you wish to trademark is too common to other traders in your industry, for example, a rubber scent for a tire company, it’s unlikely you’ll be allowed to trademark this. Again, if it is too descriptive of the normal sounds or smalls that would be associated with a type of product ort service, you’ll also run into difficulties with trademarking. For example, a citrus smell for cleaning products might be too common a scent in the industry to get trademarked.
Sometimes, if you can show that you have used this smell or sound in the past and it has become characteristic of your business, you may be able to side-step the usual grounds for rejection. If this is the case, you’ll want to speak with a trademark specialist to get further legal advice.
To successfully register a trademark, you should aim to have a unique application. It’s about protecting the symbols, sounds, smells, and words that are identifiers of your business. To avoid having your application rejected, contact a trademark specialist to get a better understanding of how to register a trademark and protect it once registered.
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