-Martha Engel, Attorney
One of the biggest issues facing electric car manufacturers is how quiet they are. So quiet in fact that 60 Minutes edited in an engine roar to its Tesla story. The quiet can have dangerous consequences for pedestrians and others. Riding my bike, I often listen for the sound of an engine roar near me before turning my head to see if it’s safe to move into the adjacent lane.
Notwithstanding the electric car issue, some manufacturers are even adding sound to smaller engine vehicles in an effort to promote fuel economy. I mean, who doesn’t like to rev up their engine a little bit? Ford has even patented a method of generating engine noise during a period between “two successive ignition events of an internal combustible engine.”
So with this modification of engine noise disengaged from the car’s actual function, or an enhancement thereof, are we entering the era of cars with distinctive engine sounds as a trademark? Historically, obtaining trademark protection for engine noises proven difficult. Harley-Davidson tried to get one for their distinctive “potato”-like sound. If you own a Harley, or if you’ve ever been to Harley Fest another Harley rally, you know that sound well. Part of the issue with Harley’s application was that the sound mark was a function of its V-Twin design. Unlike other fixed sounds like the NBC chimes, it also varied depending on the type of motorcycle, the way the rider revved the engine, and potentially even in the use of aftermarket parts. But in the case of a sound applied to an electric car or as suggested by the Ford patent application, the particular sound may have distinctive qualities, would be fixed, and would not be purely a function of its design. A user would likely be able to upload sounds so that it’s Prius sounded one day like an Audi R8 and another day like an early 20th century roadster. If not available for trademark protection, the recorded sounds would certainly be eligible for copyright protection.
Keep listening for this trademark trend soon.