Traditionally, when people think of trademarks, they instantly think of words and designs (“traditional trademarks”). However, many people unknowingly hear trademarks every day. Similar to traditional trademarks, sound marks serve to identify and distinguish a product or service through audio rather than a visual means. TMEP 1202.15. By associating a particular sound with a good or service, sound marks function as an indicator of source. Id. Thus, if a noise makes you associate that particular sound with a particular good or service, it is eligible for trademark protection.

Moreover, the trademark office differentiates distinctive sounds from those that are commonplace in a manner similar to how the trademark office determines whether or not a mark is merely descriptive. Specifically, a commonplace sound includes those that typically make the sound during “their normal course of operation (e.g., alarm clocks).” Id. Accordingly, if a sound is a commonplace sound, the office will require a showing of acquired distinctiveness for registration.

The First Sound Trademark

The first found trademark was registered in 1950 to the National Broadcasting Company, Inc.—more commonly referred to as NBC. The famous music notes G, E, and C played on chimes are known worldwide and are instantly recognizable as NBC.

Other examples of famous sound marks include:

Looney Tunes Theme Song – U.S. Registration No. 2,469,365

The New York Stock Exchange Bell – U.S. Registration No. 2,671,738

Microsoft Chimes – U.S. Registration No. 2,880,267

What is a sound specimen?

Just like any trademark, an applicant must show use in commerce before a sound mark is permitted to register. While one might think that you could simply upload a copy of a music score, the trademark office requires the actual sound recording. Specifically, “an applicant must submit a specimen that contains a sufficient portion of the audio or video content to show how the mark is used in connection with” its services. TMEP 904.03(f). Examples would include the .mp3 clips above.

Takeaway

As you can see, trademarks are all around you. If you have a unique way of identifying your goods or services, it may be worth exploring the possibility of obtaining a trademark. In fact, in certain situations, applicants can even register holograms as trademarks! TMEP 1202.14.

Steven M. Forte, Esq.
Steven M. Forte, Esq.

Steven is a registered patent attorney with the United States Patent and Trademark Office (USPTO) and is a member of the Florida Bar. He devotes his career exclusively to the practice of intellectual property law, focusing on all aspects of patent, trademark, and copyright law.