Column: New rules for protecting the sound of your brand

Here’s a sneak peek at the “The Rules of Engagement” column from the May 7 issue of Marketing. A brand is often loosely described as a collection of product attributes that together allow consumers to identify a specific good or service as being distinct from competitors. An effective brand will not only differentiate one product […]

Here’s a sneak peek at the “The Rules of Engagement” column from the May 7 issue of Marketing.

A brand is often loosely described as a collection of product attributes that together allow consumers to identify a specific good or service as being distinct from competitors. An effective brand will not only differentiate one product from its competitors, but create an emotional connection with the consumer to drive brand loyalty.

As anyone in advertising knows, it can often take years and hundreds of thousands of dollars (or more) to cultivate a strong brand. With these levels of investment in mind, it is natural for a company to want to protect its brand and prevent competitors from free-riding on its awareness and goodwill. Securing the intellectual property associated with a brand is often the best way to exclude competitors from using its signature elements. Trademarks, industrial designs and copyright protection have long been used to protect the look, style and feel of a brand. From the name, look and shape of the product and its packaging, to the descriptions and taglines used in advertising, registration of intellectual property has offered affordable protection for key elements of brand identity.

Recently, the Canadian Intellectual Property Office (CIPO) indicated that such protection may now be extended to another key element of your brand identity: sound. After decades of rejecting sound trademarks in Canada, CIPO has signalled that it is now accepting applications for sound trademarks. This change of direction is long-overdue recognition that sound is important enough to your brand to be worthy of the intellectual property protection afforded your visual logo or promotional tagline.

Sound branding may seem like a modern development, but it actually has roots in the earliest days of commercial radio. The radio jingle became the signature advertising technique of the day, as it showed that a catchy musical hook and lyrics advertising the product could appeal to consumers and drive recall. While copyright laws would often offer intellectual property protection for a song used in a jingle, sounds on their own, outside of a musical composition (often referred to as the “sound logo”), needed separate protection.

The early days of radio also gave rise to this form of protection in the development of the sound trademark in the United States. The first sound mark consisted of a “sequence of chime-like musical notes, which in the key of C sound the notes G, E, C.” While this description may not appear familiar, you have almost certainly heard the National Broadcasting Corporation (NBC) chimes, which were used as early as 1927 on its national radio service. The NBC chimes were of a functional origin, used to alert local radio stations to interrupt the national broadcast to transmit the local station identification in accordance with federal law. By the time the U.S. Patent & Trademark Office granted NBC the first registration of a sound trademark, the chime had become synonymous with the brand and remains a recognizable part of it decades after NBC ended its radio service.

While sound trademarks have been permitted in the U.S. for decades and are as familiar to us as the Pillsbury Doughboy’s giggle, it took the ferocity of a lion to have their use accepted in Canada. The recent change of course in Canada stems from a 20-year effort by Metro-Goldwyn-Mayer (MGM) to trademark the distinctive sound of its lion’s roar used in association with its films. After its application was rejected, MGM appealed the decision to the Federal Court of Canada, which ultimately directed CIPO to accept the lion’s roar as a sound trademark. This development appears to bring Canada in line with the U.S. and many other countries with respect to sound marks.

You need only watch TV to hear the strumming bass at the end of the Bank of Montreal commercials or the sound logo used by Rogers Communications to know that Canadian brands are already using sound to connect with consumers. This new development should be watched closely to see how sound marks evolve within Canadian trademark law. They may offer your brand an additional line of protection in the battle for the hearts and, minds—and ears—of consumers.

Erin O’Toole is a lawyer with the national firm of Heenan Blaikie LLP. This column is not legal advice nor a substitute for legal counsel.

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