A Sound Trademark Identifies and Distinguishes a Product or Service Through Audio Rather Than Visual Means

A Sound Trademark Identifies and Distinguishes a Product or Service Through Audio Rather Than Visual Means

A Sound Trademark Identifies and Distinguishes a Product or Service Through Audio Rather Than Visual Means

Sound marks function as source indicators when they “assume a definitive shape or arrangement” and “create in the hearer’s mind an association of the sound” with a good or service. Thus, sounds may be registered on the Principal Register when they are “arbitrary, unique or distinctive and can be used in a manner so as to attach to the mind of the listener and be awakened on later hearing in a way that would indicate for the listener that a particular product or service was coming from a particular, even if anonymous, source.” Examples of sound marks include: (1) a series of tones or musical notes, with or without words; and (2) wording accompanied by music.

There is, however, a difference between unique, different, or distinctive sounds and those that resemble or imitate “commonplace” sounds or those to which listeners have been exposed under different circumstances, which must be shown to have acquired distinctiveness.  Examples of “commonplace” sound marks include goods that make the sound in their normal course of operation (e.g., alarm clocks, appliances that include audible alarms or signals, telephones, and personal security alarms). Therefore, sound marks for goods that make the sound in their normal course of operation can be registered only on a showing of acquired distinctiveness. For example, cellular telephones that emit a “chirp” sound fall into the category of goods that make the sound in their normal course of operation.