When was the last time you thought about pigs? What do you think when you hear the word “pigs?” Or an OINK OINK noise? Or what about the angelic and oh-so-American, “SOOOOOOOOOEEEEEEEEYY!”?
Well, the University of Arkansas contends that you’re probably thinking about the Arkansas Razorback sport teams. And they convinced the U.S. Patent and Trademark Office to agree. Chants appear to be the hot new item in the trademark world (at least, I Believe so based on an undeniable sample size of two). This time, we’re dealing with a more unique situation as the University of Arkansas successfully registered a sound mark for the “Hog Call” Razorback chant in connection with “providing collegiate athletic and sporting events.” Sound mark registrations are still pretty rare, so this is relatively new territory. The University described its mark as follows:
The mark consists of a collegiate cheer which consists of the following words: Woooooooo. Pig. Sooie! Woooooooo. Pig. Sooie! Woooooooo. Pig. Sooie! Razorbacks!
The examiner initially refused registration on the grounds that the proposed mark failed to function as a mark, reasoning:
The applied-for mark, as shown on the specimen, does not function as a service mark because the specimen shows the mark being chanted by a crowd at a sports event. Because crowds commonly chant encouraging words at sporting events, consumers of the sporting event would not recognize the chant as a source indicator for the event.
The examiner’s reasoning makes sense to me. After all, the fact that fans chant something at a football game doesn’t necessarily mean that the University can (or would want to) claim that chant as a service mark.
In response to the Examiner’s refusal, the University did not contest the Examiner’s conclusion that the mark failed to function as a mark. Instead, the University submitted a new specimen and a number of news articles showing how long individuals had been doing “Hog Call” chants as evidence of acquired distinctiveness. The University described the new specimen as follows:
a video of former University of Arkansas Athletic Director and coach Frank Broyles leading University of Arkansas Chancellor David Gearhart, current Athletic Director Jeff Long, members of the University of Arkansas Board of Trustees, other University officials, and University employees and students, including cheerleaders, leading a crowd in the “Calling of the Hogs” (“The Hog Call”) at the dedication of the statue of Coach Broyles in front of the Frank Broyles Athletic Complex on the campus of the University of Arkansas, Fayetteville, on November 23, 2012.
The video itself is shown below:
Apparently, the Examiner believed that the Response was sufficient to overcome the refusal and approved the mark for publication. The Certificate of Registration issued on July 1, 2014. And that little piggy went hee hee hee all the way home.
This demonstrates one of the frustrating aspects of trademark prosecution, namely, problems due to the subjective nature of the examination procedures.
Here, the examining attorney took the position that shouting the chant at a football game did not demonstrate use as a service mark. So how, then, does a video of a former coach leading a chant at a ceremony for dedicating a statute (where there are no athletic or sporting events occurring) demonstrate use as a service mark, especially in connection with “providing collegiate and athletic sporting events?” Is “statute dedication” simply the most boring sport of which I am thankfully very unaware? I mean, people complain about soccer…
Ultimately, sound marks are a new frontier with undefined boundaries and contours. There is no question, in my mind, that the NBC chime sound constitutes a service mark, at least with broadcasting services. But something about this registration just smells fishy (piggy?).
First, what exactly does the University own now? Generally, it would be the right to use the mark and to prevent others from using anything confusingly similar. However, how much protection should the University get? Just the exact “Woo, sooey, woo sooey, woo sooey, Razorbacks!” chant? Protection for any use of “woo, sooey?” Certainly not WOO alone. What about SOOEY alone?
The Random House Dictionary defines “sooey” as “a shout used in calling pigs” (ditto Mr. Webster). Besides, the whole reason the chant came about (according to the University’s own 2(f) evidence) is because the mascot was a hog. Farmers have been using “SOOEY” to call hogs for as long as I can remember and Google search evidence can support (at least before the University’s use, just trust me). It’s still used at hog calling contests at state fairs across the country (in case you’re curious as to the history of the sport, Fred Matzel of Madison, Nebraska is widely considered to be the very first hog caller to be “truly championship material,” even receiving an invite to perform his famous call on The Radio in 1926 ).
Second, use and ownership is anything but clear. Does the mark really identify a source? Or is it the sound equivalent of an ornamental design, an expression of encouragement or appreciation of the university? If a man began yelling “SOOOOOEY” at a Minnesota – Wisconsin football game, would you wonder if the University of Arkansas was sponsoring the game?
Third, and perhaps most importantly, it just isn’t fair that the University of Arkansas gets to claim “national distinction” for being “the first college or university in the nation to receive a federal trademark registration for its college cheer as a sound mark from the U.S. Patent and Trademark Office.” The university with the most distinctive sound marks, at least by objective measurements, is clearly the University of Iowa (which, coincidentally is my alma mater). There is the Hokey Pokey, the Swarm, the Victory Polka, and more. All of these are undeniably superior to Arkansas’s sound mark. If you don’t believe me, then why does the Arkansas head football coach have an Iowa tattoo on his leg?
So those are the three little piggies. But what about the wolf? Will Arkansas be huffing and puffing and bullying down doors of third-parties shouting SOOEY? In their press release, the University claims to have no intent of doing so, stating:
The registrations of both the word and sound marks do not in any way impact the continued use of the Hog Call by fans for non-commercial activities including Calling the Hogs at games or wherever they would like.
We’ll have to wait and see how broadly the University interprets “non-commercial activities” and how narrowly they interpret “or wherever they would like.” I expect though that there are a number of car dealerships and restaurants in Arkansas that may need to record some new commercials. Somebody’s hogging all the pig calls.