Can I Trademark a Sound?

We hear them every day. The clip that plays before the radio show you listen to. The short sound before a movie or TV show you watch, linked inextricably with a logo or other item.

A sound trademark is a trademark in which sound is used to uniquely identify the commercial origin of products or services. Think, “By Mennen” or “Co-stanza!”

The test for whether a sound can serve as a trademark “depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck”. In re General Electric Broadcasting Co., 199 USPQ 560, 563 (T.T.A.B. 1978) (a series of bells for radio broadcasting services was held to be capable of functioning as a service mark upon evidence of acquired distinctiveness. The decision also referred to other sound marks that had been registered in respect of series of musical chimes, sound of a creaking door, sound of a coin spinning on a hard surface and electrically produced series of three notes).

The biggest and baddest case was probably when Harley-Davidson tried to register as a trademark the sound of a Harley Davidson motorcycle engine. Of course, Harley Davidson’s competitors filed oppositions against the application, arguing that many similar motorcycles use the same engine which produces the same sound. After goodness knows how much money spent litigating (and six wasted years) Harley Davidson withdrew their application.

In recent times, sounds have become more common trademarks in the marketplace. The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights definese a trademark as, “any sign…capable of distinguishing the goods or services of one undertaking from those of other undertakings.”

Check the “USPTO Kids’ Pages” (somehow, that exists) for samples of many well-known trademark sounds.

Aaron Thalwitzer is an attorney practicing in Melbourne, Brevard County, Florida.