Trademarking Music

Actions like trademarking a colour or piece of music are not for every type of business.

They’re difficult to achieve. You can’t just apply to register them like you do with a name or logo. Instead, you need to first become known through a colour or piece of music.

‘Unconventional’ trademarks, as they’re known, are for big business. They're also for very ambitious small businesses who are playing the long game. 

Maybe you’re intending to pass on the business to family, so have plenty of time to build a household name brand. Or you might be starting what could become a fast growing billion-dollar business.

Assuming you aspire to trademark a piece of music, what’s involved to do so?

Compared to colour, music is easier to trademark. That's partly because there is no interim protection available over a colour when a brand is becoming known.

With music it’s easier to prevent competitor copying because of your copyright in the music. There's no copyright in colours.

If you have an original piece of music composed for your brand you’ll secure the copyright in it. And your copyright in the music gives you the necessary rights to stop competitor copying.

You want to prevent copying so you are uniquely recognised through your music. You wouldn’t want consumers to attribute your music to a competitor.

If you use a classical work as your music, you won’t have the same protection as you enjoy with a totally new piece of music. So, you’ll need to do more extensive marketing campaigns to ensure the music is associated to your brand.

For example, Hamlet Cigars used a Bach piece, Air on a G string which was no longer in copyright as its music. They engaged a musician to perform the music and got copyright in that performance. However, that copyright didn’t give them the right to stop others also using the same music. Provided the performance was by a different musician, others could have used the same music.

So, Hamlet Cigars succeeded in becoming well known through that piece of music thanks to its ability to market extensively over a number of years.

The company ran a series of ads in the 60s through to the 90s on TV and in cinemas on the theme of Happiness is a Cigar called Hamlet). Here is their photo booth ad.

As a result, Hamlet Cigars was able to trademark Bach's Air on a G String.

I reckon it would take at least 30-50 years for a business to trademark its music or colour. It would need the resources to advertise its brand colour or music extensively, so it becomes recognisable by those signs.

Unless you’re likely to have such resources, there’s no point in aspiring to register a colour or music trademark.