Trade Mark Tunes – Rockin’ the Rights

In the rapidly evolving landscape of music, protecting intellectual property has become more crucial than ever. As artists and creators explore new avenues to engage with fans in the virtual world, this has brought the importance of sound trade marks and protecting digital merchandise through trade marks to the forefront.

Seeking protection through various forms of intellectual property including sound mark trade mark registrations, increases the scope of rights afforded to owners and avenues to enforce those rights against infringing third parties.

Sound trade marks offer a unique way for artists and creators to safeguard their musical or audio content in the digital realm. Digital merchandise or “merch’ on the other hand refers to any virtual items that fans can purchase and use within the digital environment.

The shift from the physical to the digital has already changed the way we listen to music – now, it's time for the next step – the proliferation of sound marks and virtualisation of music "merch".

What is a sound mark?

A sound trade mark can be any auditory sound, such as a musical sound, spoken words, a combination of spoken words and music, or a mechanical sound such as pinging or clicking. The purpose of a sound trade mark remains the same as a conventional word, device or logo trade mark, that is, the sound distinguishes the goods or services from competitors in the market.

As consumers utilise a myriad of devices, platforms or applications that produce sound, consumers are more exposed to hearing music or advertising and become astute to recognising a trade mark by sound, rather than relying on visual representations.

To test this theory, have a listen to these sound marks. You may recall the source of these marks more easily than you think:

• Listen to Sound Mark 1
• Listen to Sound Mark 2
• Listen to Sound Mark 3
• Listen to Sound Mark 4

Did you guess them correctly? Answers are at the bottom of this article!

The power of sound mark

The sound marks examples have become so distinctive that consumers can readily recognise the brand or owner of these marks and associate the sound with the owner.

Have you ever heard a sound on the radio that played on repeat in your head? Research has proved that humans favour harmonic sounds and are more likely to absorb and recall a sound rather than information that we read.¹ Therefore, repetitive exposure to a sound, such as the catchy jingle you hear on the radio, is more likely to be lodged into our subconscious mind and committed to memory. The power of the sound is undeniable, particularly if consumers can recall a brand or artist without “seeing” details of the brand.

Sounds are valuable IP and should therefore be protected.

Musical artists and sound marks

Musical artists have traditionally relied on more common forms of trade marks and copyright to protect and enforce intellectual property rights relating to music.

Trade marks are registered for song titles, album titles, name or album cover designs. For example, one of the most famous logos in the music industry is the Rolling Stones Tongue and Lips Logo, has featured on all singles, albums and merchandise since the 1970s.

Copyright laws are also utilised to protect and enforce lyrics, compositions or recordings, as those rights allow artists to protect the creative expression of the musical or literary work.

Sound marks are presently an underutilised measure for protecting rights in the music industry. Sounds from popular songs, artists or from musical scores from movies are increasingly gaining strong recognition and reputation. These sounds can often function as signs and therefore could be registered as trade marks. Musical artist, Pitbull, for example, has registered his signature yell “Eeeeyo!” in the US (US registration 5877077) which features regularly in his songs.

Registering sounds (whether it be sounds unique to a musical artist or from a song) as a trade mark affords the owner with statutory rights enforceable against unauthorised third parties who may seek to make unauthorised use of that sign as a trade mark. A sound trade mark registration will also act as another layer of rights which can be relied upon when protecting the IP in the musical work.

The future of music “merch” is digital

As the music industry has continued to evolve with sound marks, so has the concept of merchandise. The global music merchandise market is projected to grow significantly, reaching around $16.3 billion by 2030. A significant revenue stream for artists and creators is in the “merch” which we typically think of as band T-shirts and vinyl records, however “merch” is moving beyond physical and expanding into digital.

Digital music “merch” and NFTs

Digital albums and music as well as digital posters and wallpapers all come under the broad umbrella term of digital merchandise. Specific to the music industry would be items such as tickets to online meet-and-greet sessions and virtual concerts.

Artists are also creating and selling unique digital collectibles, such as exclusive tracks and behind-the-scenes content. These digital assets are often sold as NFTs. Non-Fungible Tokens (NFTs) are a type of digital asset that represents ownership or proof of authenticity of a unique item or piece of content, typically using blockchain technology. NFTs can be bought, sold, and traded, providing a new way for fans to own a piece of their favourite artist's work.

For fans, NFTs provide exclusivity – such as unreleased tracks or personalised video messages from their favourite artists. This guaranteed exclusivity and authenticity comes from each NFT being a unique digital asset with a distinct identifier with blockchain technology ensuring ownership and transaction history cannot be altered. Utilising NFTs for the sale of digital merchandise allows artists to address challenges like unofficial content and merchandise sales that can erode profits.

An example of a successful music NFT is the band Kings of Leon NFT album “When You See Yourself”, which generated over 2 million from NFT sales alone. However, Kings of Leon’s trade marks in the United States only cover entertainment services in class 41 and clothing “merch” in class 25. While artists are starting to protect their digital content – very few have made the leap to adequately protecting digital merchandise through trade marks.

Digital merchandise and trade marks

Artists can seek trade mark protection for their digital merchandise by registering their band or artist name in class 9 for virtual goods. For example, an application can cover digital collectibles such as audio and video recordings authenticated by NFTs. Trade mark registration provides an additional layer of protection for artists to prevent any unauthorised use of an artists’ name in connection with digital merchandise. Trade mark protection can also be sought for specific albums or title tracks.

Protecting artists’ music and digital merchandise

The future of music and merchandise is about creating unique, engaging experiences for fans, leveraging both physical and digital platforms to maximise reach and revenue. Ensuring the protection of artists' intellectual property rights in the digital space is key to addressing challenges like unofficial content and merchandise sales that can erode profits. Including digital goods such as NFTs are covered as part of your trade mark portfolio strategy can provide an effective avenue for securing enforceable rights and protection for artists’ music and digital merchandise.

Take-Aways

• A sound mark protects any auditory sound including a mechanical noise, song or melody which falls outside the scope of protection covered by conventional trade marks or copyright.

• There is an undeniable power in a sound mark which consumers are able to associate with a brand or artist.

• Musical artists and business owners generally rely on trade marks and copyright to protect their name, song title, album, lyrics or recordings and should consider a sound mark as an extra layer of protection for their sound.

• Digital merch is a booming market which generates significant revenue for artists and creators. If you create digital merch, you should consider protecting it through trade marks.

If you require advice on filing trade marks to protect your music or digital merchandise, please contact Natalie McOscar or Riya Mathew.

Quiz answers: 1. Netflix 2. Dolmio jingle for pasta sauce 3. Twentieth Century Fox musical score 4. Bunnings Warehouse