Apple's Start Up Chime and MGM's Lion's Roar: Can You Trademark a Sound?

Sound, StudioWhen most people think about trademarks, they usually think in terms of things that they can see – words like “Coca Cola” and symbols like the Nike “swoosh.”

But a sound can also be a trademark, under certain circumstances.

The Trademark Trial and Appeal Board (TTAB), in the case of In re Gen. Electric Broad. Co., ruled that sounds can serve as trademarks “in those situations where they assume a definitive shape or arrangement and are used in such a manner so as to create in the hearer’s mind an association of the sound with a service [or a good].”

Sound™

You probably hear trademarked sounds every day, without realizing it.

If you use a Microsoft computer, you probably hear this trademarked sound.

And if you use a Mac, you hear this startup sound, registered as a trademark for computers and operating system software.

When you watch a movie, you might hear the MGM lion’s roar or the Fox fanfare or the James Bond theme.

Getting a Regular Trademark

Getting a “regular” trademark — for example, for a company name — is pretty simple and many businesses can manage to do it without the help of a lawyer in a couple of hours.

The first step is to check the US Patent and Trademark Office’s Trademark Electronic Search System (“TESS”) database to make sure that someone else hasn’t already registered an identical or similar mark for the same or similar goods and services.

Where it gets tricky is determining whether marks are the same or similar, and whether goods and services are so closely related that there might be consumer confusion as to the source of the goods or services using the marks. When in doubt, it’s a good idea to consult a trademark lawyer.

Assuming there is no similar mark, then it’s just a matter of filling out some online paperwork. Among other things, you need to determine which “class” of goods or services your mark will be registered in; there are several hundred to choose from.  You also have to pay a fee of $275 to $325.

Getting a Sound Trademark

Getting a sound trademark is a little more complicated.

First of all, you have to determine whether your sound can be protected.

The trademark office won’t register word-based marks that are “merely descriptive.” For example, CREEMEE as a mark for ice cream might be rejected as descriptive.

Similarly, a sound trademark can’t be “commonplace.” For example, the sound of an old-fashioned phone ringing or a police siren probably couldn’t be protected.

Also, a sound can’t be “functional.”  Harley-Davidson Inc. at one point tried to get a trademark for the "potato-potato-potato" sound of its V-twin motorcycle engine but eventually gave up the effort.

Second, you have to identify your mark as a “sound mark” when you file and include a digital file with the sound.

In addition, you have to describe your sound using words. For example, the NBC chimes are described as:

a sequence of chime-like musical notes which are in the key of C and sound the notes G, E, C, the “G” being the one just below middle C, the “E” the one just above middle C, and the “C” being middle C, thereby to identify applicant’s broadcasting service.

Finally, you have to submit a sample of the sound to show exactly how it’s used in connection with your goods or services.

If it makes sense for your product or service, a sound trademark can be a powerful way to protect your brand.

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