WEISMULLER RULES!! NO MAKE THAT WEISSMULLER PRINCIPLES ... OR HOW ABOUT WEISMULLER ULULATES

As has been widely reported, the European trademark office( OHIM) has refused an application by the estate of Edgar Rice Burroughs to register the Tarzan yell as a trademark. In a decision custom tailored to trademark geeks, OHIM refused to register the yell because it could not be represented graphically. Solution? Allow an applicant to attach a sound file. Which OHIM does now allow. And indeed a second application supported by a sound file has apparently been filed.

But as I reflected on the application several questions came to mind:

1. Why is the estate of Edgar Rice Burroughs claiming ownership in the Tarzan yell? Mr. Burroughs did not invent the yell. And the estate of Johnny Weissmuller(apparently) still makes claims to his image and persona.

2. Often when folks claim rights in non-traditional marks, they assert legal rules. But Courts and other tribunals are influenced by legal principles- even if they do not explicitly say so in their rulings.

3. One of the most well known legal rules is " you should not profit from your own wrong". Many times when brand owners seek to claim rights in an unusual verbal or non verbal symbol they do so without equity on their side. Yes the "sweat of the brow" theory has been formally rejected- in US copyright law. But all too often when brand owners seek to register or assert non traditional marks they are really trying to assert ownership to a word or phrase that the public at large or an enthusiastic sub group has first begun using in connection with their product. Examples? BUG for the air cooled Volkswagen. HOG for Harley-Davidson motorcycles.

In the US the Tarzan yell is apparently registered for toy action figures. Query: Did the estate of Edgar Rice Burroughs plan and execute a marketing strategy centered around the Tarzan yell for a line of toy action figures? Somehow I doubt it.