March 19, 2014

Adventures in Trademarking a Sound: The Old Spice Whistle

by kevinhartley


Who remembers this viral sensation?

Hear that whistle at the end? The one from every Old Spice commercial you can remember. Well, Old Spice's parent company, Procter & Gamble (P&G, for short), recently filed a trademark application to protect that whistle.

That's right, you can trademark a sound. The NBC chimes was the first sound ever trademarked. Since then, other notable sounds have been trademarked. Such sounds are often referred to as "sound marks." You can find (and listen to) some of them here, including the MGM lion and the Yahoo yodel.

Despite the existence of numerous sound marks, such marks are not easy to obtain. Whether a sound can be trademarked "depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck." In re General Electric Broadcasting Co., 199 USPQ 560, 563 (T.T.A.B. 1978).

This means that, for P&G to successfully register the Old Spice whistle, it will need to demonstrate that the whistle is inherently distinctive or that the whistle is so closely associated with Old Spice that, when it is heard, the listener thinks of Old Spice. Whether P & G succeeds before the USPTO is anyone's guess. We just hope the parties keep it clean.

Yes, we'll be here all week . . . and available for any questions you might have about registering a sound or any other mark.

The lawyers at Trademarkology provide online trademark registration services backed by the experience and service of one of the nation's oldest law firms. Click here to begin the process of protecting your brand name with a federally registered trademark.