Trademark FAQ: Can You Trademark a Sound?

Sound trademarks have been in the news lately as the Canadian Intellectual Property Office recently announced that it will now allow sounds to be trademarked. The decision comes after a twenty-year legal battle with movie giant MGM, which sought to trademark the lion’s roar heard at the end of its films.

Under U.S. trademark law, it is also possible to trademark a sound. For instance, NBC’s three-tone chime has been registered as a service mark. The Pillsbury “giggle” is also trademarked. (Additional examples can be found on the USPTO website.)

Like all trademarks, sound must serve to identify the source or trade origin of a product or service. More specifically, the validity of a sound 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).

The standard is fairly high, and the United States Patent and Trademark Office has only approved several hundred sound trademarks. Harley Davidson famously withdrew its application to register a mark on the sound made by the roar of its V-Twin engine after several competitors argued that the sound was not distinguishable from the sound of similar engines.

While the trademark process is similar to that of a standard character mark or stylized/design mark, the description must be accompanied by an audio or video reproduction of the sound.

How Can I Help?

Of course, this post only offers a brief discussion of the legal issues involved in filing a sound trademark. If you would like to protect your legal rights, it is important to consult with an experienced trademark attorney such as myself.

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