Lawyers acting for the estate of Edgar Rice Burroughs, spent 10 years trying to register Tarzan’s yodelling cry as a trademark, only to have the application thrown out by the EU as lacking distinctiveness. The cry was made famous by Hollywood star and Olympic swimmer Johnny Weissmuller, who claimed to have invented it when yodelling as a child. Apparently, the cry is palindromic, in that it sounds the same forwards and backwards, and, whatever the origin, appears to own something of its development and honing to the recording studios.
That as may be, it is somewhat surprising that after a ten-year battle, the application was thrown out by the Office for Harmonization in the Internal Market (OHIM) (Trade Marks and Designs), after experts said that the lawyers had failed to show the yell was a unique sound, with the OHIM ruling that the description and the spectrogram could have been made by a violin.
Now, it’s about 30 years since I used to swing in the trees and beat my chest doing Tarzan impressions. At that time, I was unaware of intellectual property considerations, and certainly didn’t mean to infringe anyone’s rights. Nevertheless, I think that even the most ignorant neighbour or relative could tell that I was playing Tarzan and not the violin!
The lawyers, RGC Jenkins & Co, filed a description of the sound, as “consisting of five distinct phases, namely sustain, followed by ululation, followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency”. The Examiners maintained that “It is impossible to recognise from the image as filed whether the sound phenomena depicted therein is a human voice or something else, eg, the tune of violins or bells or a dog’s bark.”
Spectrograms of the sound were also filed, but the Examiners maintained that “Nobody would be able to hum the Tarzan yell from the spectrogram and nobody reads spectrograms for entertainment.”
Burrough’s estate (not Greystoke) claims that firms could make millions from using Tarzan’s chest-beating roar for mobile phone ringtones, advertising, computer games, etc. They are right. The sound is also distinctive enough for a jury of 8 year old kids to rule whether it is Tarzan or not.
Now the estate has filed another application, including a sound file of the recording which is allowed under new EU rules.