I’ll forgive you if you haven’t spent a lot of time thinking about Chia Pets lately. This is, after all, 2020 and not the 90s and we a couple of things going on that have probably held your attention. If you’re so young that you don’t remember these things, they’re essential potted plants shaped like a variety of animals, objects, and celebrities, laden with grass seeds that grow and look like hair and oh my god why is this a thing? Regardless, the product, first developed in the 70s, became popularized in the 90s and was advertised with a well-known jingle: ch-ch-ch-Chia! While Chia Pets are still sold today, they are no longer the cultural icon that they were in these earlier times.
And yet, for some reason, it was only this past week that the folks behind Chia Pets decided to try to trademark that famous jingle.
Standard Character Claim: No
Mark Drawing Type: 6 – NO DRAWING-SENSORY MARK
Description of the Mark: The mark consists of the sung words CH CH CH CHIA in the notes E4, E4, E4, A4, G4.
Now, while that trademark description does indeed look decidedly silly, it certainly is possible to trademark sounds and jingles. The bar for trademarking sounds is a bit higher than other marks, mostly centering on the public’s association with a sensory mark and a product, but Chia Pets’ jingle probably fits the bill.
This means that sound marks – just like visual trademarks – may be easily registered when they are:
“arbitrary, unique or distinctive and can be used in a manner so as to attach to the mind of the listener and be awakened on later hearing in a way that would indicate for the listener that a particular product or service was coming from a particular, even if anonymous, source.”
It’s worth noting that any jingle like the above would also be immediately covered by copyright protection upon creation. That’s one of the many factors that has me wondering why in the world this trademark had to be applied for in 2020. Add to that the waning notoriety of Chia Pets and its jingle generally, along with my having never heard of anything remotely like any competitors in the “Clay planters for flowers and plants” industry trying to use the jingle, and this all becomes all the more confusing.
Why, after fifty years in business and decades of using this jingle, does it need to suddenly be protected by trademark law?