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Nontraditional Trademarks: A Lawsuit Over YUUUP!®

Interesting news that might lead to a discussion of Nontraditional Trademarks: the New York Daily News is reporting that R&B singer Trey Songz is suing Dave Hester, star of the “Storage Wars” TV show, concerning Hester’s registered trademark and trademark applications.

The trademark in question is YUUUP! – you read that right. Can that be protected as a trademark?

Hester’s United States Patent and Trademark Office registration, here, is for: Clothing, namely, beanies, hats, caps, tops and bottoms. He has pending applications for Bumper stickers, stickers, and posters and Entertainment in the nature of live performances by a television personality; Entertainment services, namely, live, televised, radio, and movie appearances by a television personality; Entertainment services, namely, personal appearances by a television personality.

I have to confess I don’t know Trey’s songs and I don’t watch Storage Wars. For those of you, like me, who are unfamiliar with the work of these pioneering entertainers, here is a YouTube clip of Songz’ “YUUUP!” and here’s one of Hester’s “YUUUP!”

Can a Sound be a Trademark?

Sounds fall under the catchall category of “Nontraditional Trademarks.” In theory, anything that uniquely identifies a brand can be a trademark, including a color – Tiffany blue, UPS brown, and, as of recently, Buffalo Wild Wings’ yellow – a scent, or a sound. Famous sound trademarks include the MGM lion’s roar and the NBC chimes. Harley-Davidson tried to protect its allegedly distinctive engine sound, but was not successful

That said, I can’t say that I’ve ever heard of an individual’s catchphrase being protected as a trademark.

The twist here is that Hester, in a wise move, didn’t actually try to register the sound itself as a trademark. The three USPTO filings listed above are for the word YUUUP! as a “Standard Character claim.” Hester is trying to establish trademark rights in the phrase as it is written out – not in the actual sound of him saying “Yuuup!” Presumably, the word mark YUUUP! is no more or less protectable than any other written trademark.

So, unless Songz can show that he has previously used the written phrase “YUUUP!” in connection with the products & services listed above, my best guess is that Hester’s registration and applications will be allowed to go forward.

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