Sound Trademarks: Heard, but not Seen

The common understanding of a trademark or service mark is it’s a word, phrase, symbol, or design used to indicate a source of goods or services, and used to distinguish from the goods and services of others. What isn’t so common is a sound used to indicate a source of goods or services, and used to distinguish from the goods and services of others. But as uncommon as sound marks may be, they are registerable in, among other locales, the United States, the European Union, Thailand and China.

The NBC three note chime (72349496) was the first registered sound mark in the United States (1971). As bright and perky as its sound is, though, the NBC “sensory” mark written description is anything but:

“The mark comprises 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.”

This somewhat clunky description of two seconds of audio is not unusual among the fairly small list of U.S. sound marks. Consider the mark written description of Tarzan’s seven-second jungle call (75326989), made famous by actor and world-class swimmer Johnny Weissmuller, and registered in 1998:

“The mark consists of the sound of the famous Tarzan yell. The mark is a yell consisting of a series of approximately ten sounds, alternating between the chest and falsetto registers of the voice, as follow - 1) a semi-long sound in the chest register, 2) a short sound up an interval of one octave plus a fifth from the preceding sound, 3) a short sound down a Major 3rd from the preceding sound, 4) a short sound up a Major 3rd from the preceding sound, 5) a long sound down one octave plus a Major 3rd from the preceding sound, 6) a short sound up one octave from the preceding sound, 7) a short sound up a Major 3rd from the preceding sound, 8) a short sound down a Major 3rd from the preceding sound, 9) a short sound up a Major 3rd from the preceding sound, 10) a long sound down an octave plus a fifth from the preceding sound.”

Of course, it much more rewarding to listen to sound marks than read them. And listening, and associating what we hear with a particular good or service, is the basis of a sound’s status as a trademark. According to the U.S. Trademark Trial and Appeal Board, “[T]he nature of a mark is no basis for refusing to register it either as a service mark or as a trademark if it performs as an identification of source.” See In re General Electric Broadcasting Co., 199 U.S.P.Q. 560, 562 (T.T.A.B. 1978).  In our media-enriched culture, intellectual property is embodied in the audible, as well as the visual word, phrase, symbol, or design. Trademarks typically signify a brand and are often used in the marketing of a product. Think of the MGM roaring lion (73553567); the Harlem Globe Trotters catchy jingle (74158626); Luca Film Entertainment THX theme (74309951); the Pillsbury Doughboy giggle (76163189); or AAMCO’s honking jingle (75209030).

It should be noted that the road to a sound trademark is less well-traveled. Sound marks can be difficult to show as distinctive, with secondary meaning to consumers who instantly recognize and associate a sound with offered services (In re General Electric Broadcasting Co. at 563). And applications do face opposition. A commonly found example is Harley-Davidson, which sought registration of its V-twin, idling motorcycle engine sound. According to Zachary Wadle, “Sound Marks—Registration Basics,” after battling opposition from other motorcycle makers for six years over its trademark application, the company gave up the fight. See Kawasaki Motors Corp. v. H-D Michigan, Inc., 43 U.S.P.Q.2d 1521 (T.T.A.B. 1997); Honda Giken ogyo Kabushiki Kaisha v. H-D Michigan Inc., 43 U.S.P.Q.2d 1526 (T.T.A.B. 1997).  The opposing parties argued that the sound proposed to be trademarked by Harley was purely functional because it was merely the sound produced by any engine of that type. The question of whether the Harley sound was functional was never decided because Harley abandoned its trademark application in the face of substantial opposition (“Sound Marks—Registration Basics”). What’s remarkable about the Harley-Davidson sound mark is although it never received official U.S. trademark status, there are few people who don’t instantly think of Harley-Davidson when they hear the syncopated, deep rumble of a motorcycle engine.—Ginny Guidry