Los Angeles – According to documents filed with the United States Patent and Trademark Office (USPTO), Proctor & Gamble has applied for trademark protection for the Old Spice whistle. The application was filed on January 17, 2014 and describes the trademark as “a whistled tune comprising of the following notes: A3 sixteenth note, A3 sixteenth note, B3 eighth note, D4 eighth note, C#4 dotted eighth note, E4 sixteenth note, F#4 eighth note, D4 eighth note.” The USPTO has cleared the application for publication, making the famous jingle one of the relatively select few sound marks allowed federal trademark protection.
In comparison to the millions of word and design trademarks on file with the USPTO, sound marks comprise a very small portion of the total trademarks protected in the United States. In 1971, the iconic “NBC chimes”, comprised of three notes became the first sound mark to be accepted and registered by the USPTO. Other famous sound marks include Southwest Airline’s “You are now free to move about the county”, MGM’s roaring lion and the Sportscenter jingle.
Part of the reason so few sound marks exist has to do with the difficulty of the test for whether a sound qualifies as a protectable sound mark. In the landmark Trademark Trial and Appeal Board (TTAB) case of In re General Electric Broadcasting Co., Inc., 199 USPQ 560 (TTAB 1978), the Board found that the test “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.”
For Proctor & Gamble, which seeks to register the trademark as part of its Old Spice brand in connection with “Antiperspirants and deodorants for personal use; Bar soap; Body sprays; Body wash; Cologne; Hair conditioners; Hair shampoo; Shaving preparations,” the whistle will be the company’s first federally protected sound mark, assuming it clears the month-long publication period, which will begin on April 22. One of America’s most longstanding companies, Proctor & Gamble has been around since 1837 when it was founded by a British soapmaker and British candlemaker in Ohio. Proctor & Gamble acquired the Old Spice brand in 1990 from Shulton, Inc., which began making products under the Old Spice name in the 1930s.