Don’t Hassle With Our Trademarks, Hoff!
Section 45 of the Lanham Act defines a trademark as: “any word, name, symbol, or device, or any combination thereof – (1) used by a person or (2) which a person has a bona fide intention to use in commerce . . . to identify and distinguish his or her goods . . . . In essence, a trademark is a source identifier. Any number of things may be considered a trademark, for example:
- Smells: Trademark Reg. No. 1,639,128 (cancelled) for “Sewing thread and embriodery yarn” having a description of “a high impact, fresh, floral fragrance reminiscent of plumeria blossoms”.
- Colors: Trademark Reg. No. 1,439,132 (live) for “fibrous glass residential insulation” having a description of insulation that is entirely “pink”.
- Building designs: Trademark Reg. No. 2,237,987 (live) for “restraurant services” having a description of “a design for store fronts as shown” in the drawing accompanying the trademark application.
- Sounds: Trademark Reg. No. 916,522 (live) for “broadcasting of television programs” having a description of “a sequence of chime-like musical notes which are in the key of C and sound the notes G, E, C, the “G” being the one just below middle C, the “E” the one just above middle C, and the “C” being middle C, thereby to identify applicant’s broadcasting service”.
Given that a sound can be a trademark, why not a voice? Think of the number of voices that most would recognize by sound alone without an accompanying face to view . . . James Earl Jones, Jerry Seinfeld, Yeardley Smith. So why not Will Arnett?
“Will Arnett?” you ask. Yep. Will Arnett. According to a recent story on Comingsoon.net, Mr. Arnett has done voice-over work for General Motors as the voice of GMC Trucks. Mr. Arnett was also recently cast as the voice of KITT on the Knight Rider revival on NBC. In the current incarnation of the show, originally made famous during the 1980s by David Hasselhoff, KITT is a Ford Mustang. Ford Motor Company, as we all know, is a direct competitor of General Motors.
As the voice of GMC Trucks for the better part of a decade, consumers may associate the voice of Mr. Arnett with General Motors. Mr. Arnett’s voice may well serve as a source identifier when heard in association with automobiles. Therefore, it makes sense that General Motors would not want its “voice” associated with a product of its rival. So keep your eyes (and your ears) peeled. You never know where a trademark might pipe up.
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I could have sworn that KITT had the same voice as the original series, but I guess my memory was deceptive. I never associated the voice with anything other than a talking car. Great post!
For a case regarding a somewhat-related scenario, see Allen v. National Video, Inc. 610 F. Supp. 612 (SDNY 1985). In Allen, the court found a likelihood that readers of of an advertisement would believe a look-alike was Allen, or at least appeared with Allen’s consent or endorsement, and therefore determined that Sec. 43(a) of the Lanham Act had been violated.
In the case of Midler v. Ford Motor Co. (849 F.2d 460), the court rejected the Sec. 43(a) argument on the ground that Bette Midler lacked standing to bring a Lanham Act claim against the producers of a “noncompeting” advertisement. Instead, the court determined a common law “property right” in vocal identity.
In reviewing these two cases, it would appear that a Sec. 43(a) claim could be made related to one’s voice in association with a particular product of a particular company, such as in a situation where a sound-alike is used or the voice actor begins doing work for a competitor.