Outcry over Tarzan's yell prompts trade mark clarification

The Office for Harmonisation in the Internal Market (OHIM) issued a clarification this month after widespread coverage of its recent decision to reject an application for the famous call of Edgar Rice Burrough's fictional character.

The application had included two pictures said to represent the sound of the jungle resident's cry, one an image of a wave form representation of the sound, the other a spectrogram of the frequencies of the yell.

The sonogram:

It came with a text description: "sustain, followed by ululation, followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency…"

That application, originally made in 2004, was rejected. Upholding the rejection in 2007, the Board of Appeal wrote, "Nobody can read a spectrogram as such."

But OHIM has now explained that Tarzan's yell is already registered as a mark. Another application, also made in 2004, included the yell in musical notation. That was accepted for registration, OHIM said.

The musical notation:

OHIM said a third application is pending, in which a sonogram for the yell was submitted with an MP3 file (119KB) in 2006. It survives due to a legal change that took place after the first application. All three applications were made by Edgar Rice Burrough Inc.

"[The third application] has been published so that interested parties have a chance to decide whether or not to object," said OHIM. "This has been made possible by a change in legislation in 2005, which means that the Office is able to accept sonograms provided they are accompanied, at the time of the filing, by an MP3 sound file."

In the past 10 years, OHIM has registered around 40 sound marks, it said.

OHIM trade mark lawyer Wouter Verburg said: "We are getting increasing interest in this area – everything from Tarzan's yell to a lion's roar. If they comply with the formalities and are distinctive they can be registered, and we now accept MP3 files as part of this process, provided they are filed together with the sonogram. As technology moves on we have moved too."

Lee Curtis, a trade mark attorney with Pinsent Masons, the law firm behind OUT-LAW.COM, said: "This is good news. It shows OHIM is ahead of the game."

"In a lot of other countries this probably won't be possible but sounds do act as trade marks and they should be eligible for protection," he said.