As required by the Lanham Act, an individual is able to trademark any word, name, symbol, or device. More importantly, the individual who wishes to register their mark with the United States Patent and Trademark Office “USPTO” must make a showing of its bona fide intent and right to its use in the stream of commerce. A sound, in particular, is not expressly mentioned in the Lanham Act, but it is not expressly barred either. So, the answer is yes, an individual may apply to register a sound with the USPTO, but the federal courts have held that the sound must be “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.” In other words, more harder than you think.
Which Sounds Are Likely to be Trademarked?
Similar to registering names, symbols or words, the USPTO sets high standards when reviewing sound applications. The sound must be tremendously identifiable with the brand. Nonetheless, a brand’s presence must be immense and widely known to the general public. Some popular sounds that have passed the inherently distinctive sound test are Law and Order’s “Chung Chung” sound which is played after each scene change in an episode, AOL’s “You’ve got mail” greeting after an e-mail has been received, even the sound of Darth Vader’s breathing, yes you read correctly, Darth Vader’s robotically enhanced respiratory system has been successfully trademarked. But what is the key similarity that all these companies share? The fact that they are known to millions and have ushered society in such an impactful way. These sounds not only resemble great marketing, but they portray subliminal associations to brands that we know and love. That’s what the USPTO aims for, a showing that a particular sound is so identifiable with a brand’s good or service that the noise is substantially exclusive to it.
How Do I Trademark My Sound?
For starters, your sound must have been in continuous use for five consecutive years in order to submit your application with a showing of distinctiveness. Distinctiveness of a mark is generally referred to its particular features and the goods or services offered with the corresponding mark. The sound file should be attached with your application and the mark must be identified as “non-visual”. It is important to note that a detailed description of the sound file must be included within the application. For example, if you are an entertainment production company in the business of creating visuals such as cinematic movies, and the sound file is a seven-second sound bite that is included in every introduction to each film, then all of that should be identified in your description.
The USPTO looks to review applications that display the continuous and repetitive use of the sound and its relation to the goods or services at question. If your movies are well known to the general public, then it can usually be inferred that you are directed to a large audience that has seen your productions, and can inherently recognize the film’s introduction and associate it with your particular company. Another aspect that the USPTO is keen on is the ability to hum your sound. If you can hum your sound and have someone else instantly recognize where it’s from, then you will have better success with registration approval. Note that piercing into the subliminal mind is crucial.
