Hot on the heels of Luke Littler’s much-discussed application to register his facial image as a trade mark, Taylor Swift’s company TAS Rights Management has filed three new trade mark applications with the United States Patent and Trademark Office (“USPTO”) — two audio clips of her voice and one photograph of her on stage. As with the increasing number of applications to protect facial images as trade marks, these applications are likely to be an attempt to protect Taylor Swift from threats posed by artificial intelligence, particularly as she is already a frequent target of deepfakes.
Whilst the increasing number of celebrities seeking to protect their voice as a trade mark in the US might indicate its value under US trade mark law, the position may not necessarily be as clear cut in the UK.
Seeking to protect a sound as a trade mark in the UK is not a new concept – Netflix’s “ta-dum”, PlayStation’s startup sound, and MGM’s roaring lion are all examples of sounds that enjoy registered trade mark protection. That said, protection of sound marks is certainly not widespread.
As with seeking to protect a facial image as a trade mark, there are a number of requirements that must be met for a sound mark to be accepted for registration in the UK. One of the biggest hurdles is establishing that the sound is sufficiently distinctive so as to be capable of distinguishing the goods/services of one undertaking from those of another, thereby fulfilling the essential function of a trade mark.
Swift’s applied-for marks concern something a little different from the typical “jingle” we might expect to see as a trade mark. Attempting to register the spoken voice of a celebrity as a trade mark is a new idea in the UK, and not one that has been put to the test in court to date. It is difficult to say with any certainty whether Swift’s applied-for sound marks, namely, the spoken phrases “Hey, it’s Taylor Swift” and “Hey, it’s Taylor”, would be regarded as inherently distinctive by the UKIPO. It is perhaps likely that the UKIPO would object to both marks on the basis that the phrases are non-distinctive insofar as consumers would perceive them as a simple greeting/introduction, rather than a trade mark intended to indicate the commercial origin of the services in question. If such an objection was encountered, Swift’s management company would need to demonstrate that both marks had acquired distinctiveness through use. Even if registration of these marks was possible in the UK, it would remain to be seen how the scope of such a registration would be interpreted and what would be deemed “confusingly similar” – would, for example, these trade mark registrations protect against similar phrases spoken in a similar voice only, or could any use of Swift’s voice be deemed confusingly similar to the marks?
As with any UK trade mark application, an applicant seeking to register a sound mark must declare a bona fide intention to use the mark, and could face the cancellation of their resulting registration if the mark is not put to genuine use after 5 years of being registered. It is not clear at this stage what might constitute genuine use of a voice mark, though this is perhaps likely to be a slightly easier hurdle to overcome than for owners of facial image marks.
The UK, unlike some US states, does not have a statutory “right of publicity” protecting individuals from unauthorised commercial use of their likeness or voice. The existing protection is somewhat fragmented, such that we are increasingly seeing trade marks being used in an attempt to plug the gap. I doubt it will be long before we see equivalent applications for voice marks being made in the UK, and I suspect that the coming years will be a period of transformation in this space.
Listen out for what comes next!