Sound Trademark
A sound trademark helps consumers differentiate one product or service from another, just like any other trademark. It does this through audio, rather than through images and/or written words. Sound marks can be as simple as a chime or as complex as a jingle.
While it can be more complicated to establish a valid sound trademark than a word or design mark, it can be done. We’ll go over how to identify a sound mark, popular marks you might have heard, and the process for federal registration.
In this article, we'll cover:
What Makes a Trademark a Sound Mark?
Sound marks are—you guessed it—trademarks that use sound, such as musical notes and vocals. Much like a word or design trademark, a sound mark is a form of intellectual property that businesses use to distinguish themselves and their offerings in the marketplace.
A sound mark must:
- Be distinctive
- Be unique
- Create brand awareness
In other words, a sound mark must be an original sound that helps consumers tell particular goods and services apart. The sound must be recognizable and easily identifiable to listeners.
Importantly, the audio can be derived from existing sounds, like a lion’s roar or a bell ringing, so long as the use of the sound’s application in commerce is unique. If a business uses their product/service’s literal sound as branding—for example, a chainsaw company using the sound of a chainsaw—it will be extremely hard to register as a sound mark.
Many sound marks are registered with the United States Patent and Trademark Office (USPTO) in order to have nationwide protection against infringement. However, sound marks are harder to register than traditional word and design marks. This might be because sound marks are relatively new. The Lanham Act, which codified federal trademark law in the U.S., does not explicitly discuss sound marks, even though the USPTO specifically allows their registration.
Those who choose to federally register their sound mark often benefit from the help of trademark attorneys.
Want to get started? Our Trademark Service has attorneys and experts ready to help!
How Can I Protect My Sound?
To protect a sound against infringement, there are two federal paths: copyright protections with the U.S. Copyright Office and federal registration with the USPTO.
- Copyright protections exist for any creative, human-made work, including many sound marks. If the sound mark is a jingle, for example, it has innate copyright protections from the moment it is “physically” created, analogue or digital.
- As we know, trademark protections exist for sounds that are used for specific brands. This can include creative works but also encompasses the re-purposing of everyday sounds. If you want your sound protected in relation to your business, a trademark is likely the way to go.
How do I register my sound as a trademark?
To register a sound mark, first be certain that your sound is both unique in your industry (not already trademarked by a competitor) and distinct (not a generic sound for your offering). To do this, you’ll need to conduct a trademark clearance search. You can search for registered sound marks using the USPTO’s Trademark Search.
Once you’ve confirmed your sound mark has a good shot at registration, filing the application is nearly the same as filing any other trademark application with the USPTO. For example, choosing your application type, filing basis (usually intent-to-use or use in commerce), and classes works the same for any type of trademark application.
The main difference when registering a sound trademark is how you’ll show the USPTO your mark in commerce. The example of your mark in use is referred to as a specimen. In the case of a sound mark, you’ll submit the actual audio, as well as a written description of the audio. This can be an audio file or a video clip of how your sound is being used in connection to your goods and services, such as in an advertisement.
You can submit an electronic file in .wav, .wmv, .wma, .mp3, .mpg, or .avi format. All audio files should be under 5 MB in size and video files should be under 30 MB in size.
Do I have to register my sound mark?
No. Trademarks, including sound marks, do not require federal registration. In addition to some sounds having copyright protections, all sound marks have common law trademark rights. This means that so long as your sound is unique to your industry and your business’ area of operations, you have exclusive right to that sound in your geographical region.
However, in order to get guaranteed nationwide protection on the sound as a trademark, USPTO registration is required.
Examples of Sound Marks in Commerce
While sound marks can be tough to register, those that make the cut might be more well known than you think. For some people, when you say the word “Kit-Kat,” they immediately begin to hum: “Give me a break, give me a break! Break me off a piece of that Kit. Kat. Bar!” If your kid is trying to convince you to go to McDonald’s, you might get that iconic 5-note “Ba Da Ba Ba Bah” stuck in your head. These are sound marks.
You likely know more sound marks than you think you do. For example, a few prominent registered sound trademarks include the Harlem Globetrotter’s court-entrance song, “Sweet Georgia Brown”, Yahoo’s iconic yodel, and the dulcet tones of Nationwide’s Musical Insurance’s jingle, “Nationwide is on your side.”
Even popular media sounds can be trademarked. The iconic Mockingjay whistle from The Hunger Games, Homer Simpson’s “D’oh!,” the Law & Order double chime, and the Star Wars universe’s lightsaber sounds are just a few of the pop culture sounds that are legally protected by the USPTO.
What all these marks have in common is their distinctness. They all use a specific, memorable, industry-unique sound to identify their source.
What if my generic sound has brand recognition?
Short answer? There isn’t one! With word and design marks, the USPTO may grant registration to seemingly weak trademarks if they’ve acquired “secondary meaning” (i.e. brand recognition) in the minds of consumers. But with sound marks, the situation gets more complicated.
For example, in the late ’90s, Harley Davidson tried to trademark the sound of their motorcycles’ engine. When idling, the V-twin engine makes a distinctive, loud “chug-chug-chug” sound that Harley representatives said were iconic to their bikes, setting their product apart from other bikes on the road (and the market).
However, this sound is specific to the engine type, which Harley did not own a patent on, nor invent. Therefore, competitors such as Honda Motor Co. and Yamaha Motor Co. argued that Harley couldn’t claim exclusive rights to the sound of a product they did not own. In the end, Harley was unable to prove that the sound was unique and distinct. They pulled their federal registration application.
Just because you think a sound is iconic and you use it with your brand doesn’t automatically mean you’ll get federal approval.
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*This is informational commentary, not advice. This information is intended strictly for informational purposes and does not constitute legal advice or a substitute for legal counsel. This information is not intended to create, nor does your receipt, viewing, or use of it constitute, an attorney-client relationship. More information is available in our Terms of Service.
