Can I Trademark A Sound?

» Posted by on Sep 11, 2013 in Music Business | Comments Off

The answer is yes, but it is very difficult. According to the United States Patent and Trademark office (and stated very simplistically), a sound mark depends upon the aural perception of the listener and 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 is struck.  Said in another way, you immediately think about a brand when you hear the sound. This is an incredibly high threshold to pass where a sound becomes so famous it is associated with a consumer good or service. Some very famous examples would be the NBC Chimes, 20th Century Fox’s fanfare composed by Alfred Newman, or Homer Simpson’s catch line, “D-Oh!”

In comparison, the most famous denial of a sound mark (technically not a denial, but after 6 years in court the application was withdrawn) happened against Harley Davidson who attempted to trademark the sound of their motorcycle engine “chug.” Harley Davidson faced severe opposition from rival motorcycle companies who argued Harley Davidson’s sounds were not unique, and other motorcycle brands across the industry used similar motors which produced similar sounds.