Increasingly, trademark protection is extending beyond symbols and names, to nontraditional marks like color, scent, taste, and touch, to name a few. Can you also trademark a sound? Sure. However, should you trademark a sound? Probably not.
There are approximately 203 live sound marks registered with the United States Patent and Trademark Office (USPTO). Some of them are quite noteworthy; others are undistinguished. A few notable sound marks include the Intel Inside bong, the NBC three-note chime, and the Federal Signal Corporation’s fire truck siren. Upon listening to those particular sounds, you are able to immediately recognize its direct source without confusion.
It is in fact advantageous for companies to expand their branding strategies to encompass the senses. Accordingly, consumers would have the ability to recognize their favorite brands by name, symbol, and now sensory factors like smell, taste, feel, and sound. It expands the brand recognition strategy to make the company or product more memorable. It helps to maintain the value of the brand, make it stronger, increase consumer loyalty, and in turn, boost profits.
However, it might not be worthwhile to register a trademark for these sensory factors, particularly sound marks, for several reasons. As a nontraditional mark, sound marks are very difficult to clear. They are categorized as either inherently distinctive, like a fire truck siren, or commonplace, like a duck quacking noise or the sound of an idle motorcycle engine. While inherently distinctive sound marks are so unique that they alone may satisfy the requirements for trademark registration, commonplace marks need an additional element, i.e. a secondary meaning, to qualify for trademark registration. That is, a consumer must be able to identify the generic sound and also associate that sound with a particular product or brand.
One failed attempt at registering a sound mark was made by Harley Davidson. In the early 90s, Harley Davidson manufactured a motorcycle with a V-Twin engine that made a noise while in its idle position that mimicked the words “Potato, Potato, Potato” read slowly. With no patent on the design, other motorcycle companies created similar V-Twin engines that produced the same sound effect. Harley began a sound mark application, then abandoned it because of challenges from competitors that when compared to each other the engine sounds were unrecognizable as a Harley sound mark.
Trademarking sound may also be very costly. After years and thousands of dollars spent from the time Harley Davidson initially began the application process, they sought not to proceed any further. It’s speculative. It calls for filing fees, maintenance fees, and attorney’s fees to be spent just for the USPTO examiner to say, “We need more. Your sound is not distinct, or famous enough.”
Furthermore, even if a company made it past the registration stage and there was an infringement action for their sound mark, there are too few cases that the courts can use as precedent. It would likely be a case of first impression. The reason why there are very few trademark infringement cases for sound marks is because there are very few registered sound marks to begin with. As mentioned, there are only 203 sound marks registered and active to date. Not to mention the marks that have been abandoned or terminated.
Is it all worth it? Maybe, depending on the company’s size and branding strategies. It’s not just for any brand, but a famous one; one that is widely recognized with an established reputation and deep pockets; one that will reap substantial financial benefits if the sound is trademarked. Although protecting the brand with intellectual property rights is encouraged, it might not be practical for everyone. Companies must therefore keep these factors in mind before attempting to register a sound mark.
