From a Lion’s Roar to a Cartoon Character Catchphrase: Trademarking So…

Sounds play a meaningful role in marketing a company’s brand and establishing brand recognition. For example, when you hear the voice of a duck saying “Aflac”, you immediately recognize it from the American Family Life Assurance Company’s commercials. It is advantageous for companies to expand their branding strategies to include all of the senses, instead of just one. It makes the company or product more noticable and increases consumer loyalty, which helps enhance profits. However, using sound as a distinctive identifier for a brand hasn’t been an advertising tool for very long. According to the Trademark Office’s records, the first successful application for a sound mark was registered in 1978 and was filed by NBC for their famous chime jingle. The NBC trademark decision set a precedent in the field, with each sound trademark coming after needing to possess certain criteria, such as being “… 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 re General Electric Broadcasting Co., 199 USPQ 560, 563 (T.T.A.B. 1978). There are approximately 203 live sound marks registered with the United States Patent and Trademark Office (USPTO), compared to the thousands of visual trademarks that exist today.

The benefits of registering a sound trademark include the exclusive usage rights in TV commercials, advertisements and other media. Others that wish to use a registered trademark must ask for permission and pay any fees associated with using the trademarked sound. However, the time of action of trademarking a sound is not for everyone. the time of action is often long, difficult and costly. Most of the time, you need to have a strong, lasting presence in your specific market in order to argue that the sound you intend to trademark distinguishes your brand and is easily recognizable by the typical consumer. Some examples of famous sound trademarks are the MGM roaring lion, Twentieth Century Fox’s cartoon character catchphrase “D’OH” (Homer Simpson), and the ticking of the 60 Minutes’ stopwatch. In the field of sound trademarks, the case fought by Harley-Davidson, a highly famous company, to register the rare sound of its engines is a perfect example of how difficult it is to prove the distinction of one’s mark. After six years of litigation and thousands of dollars, Harley-Davidson gave up and withdrew its application.

Despite the difficulty, it is worthwhile for larger, established companies with a widely recognized brand that will reap substantial financial benefits if the sound is trademarked.

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