News Flash: Non-Traditional Trademarks – Sounds like a Hog and Smells like a Ukulele

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September 25, 2014
Lisa Johnson
SmithAmundsen Intellectual Property Alert

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Most trademarks are logos, drawings, or phrases such as the MICROSOFT word mark or the Apple logo. However, the colors, smells, and sounds that distinguish goods and services can also be protected as trademarks, and even registered with the U.S. Patent and Trademark Office (USPTO). According to USPTO records, there are approximately 500 trademark applications and registrations that are made up entirely of sound, smell, or other non-visual description.

For example, in 2014, the University of Arkansas successfully registered a trademark for its university chant including the sounds “Sooie” and “Wooo,” and the words “Pig” and “Razorbacks.” Pillsbury registered its dough-boy giggle, and Aflac successfully registered the squawk of the Aflac duck. Even Tiffany’s robin’s egg blue box for jewelry and Owens Corning’s pink for fiberglass are registered trademarks. SHS International even registered “the scent of a piña colada” for its ukuleles.

Whether traditional or non-traditional, marks must meet the same requirements for USPTO registration. They must be non-functional and distinctive. The quality sought to be registered cannot be one that occurs naturally in the product or service. In other words, the owner must have taken affirmative steps to purposefully add the color, scent, or sound as an identifier for its product or service.

While the requirements for the USPTO registration are the same, the identification process is slightly different. Word marks and design marks are identified to the trademark office in writings and drawings. Identifying non-traditional marks requires more creativity. The University of Arkansas provided a MP3 download for its Razorback chant sound mark application. SHS International overnighted a vial containing the scent to the USPTO for its application to register piña colada scented ukuleles.

The sound of a ukulele (intrinsic to the instrument) cannot be registered, but the added scent of piña coladas is registrable. Similarly, the sound of a hog call is not registrable for hogs, but it can be registered by the University of Arkansas for sporting events. As it is, both the call of a hog and the smell of a ukulele are now registered trademarks.