Trademarking Distinctive Sounds

Trademarks are distinctive marks—looks, designs, slogans, or designs—that have taken on a secondary meaning in the public eye. They are associated with brands or companies. Think, for example, of Target’s bullseye—on the surface, just a bullseye, but to the public, that bullseye is unmistakably Target stores.

Unlike copyrights, which need to have some kind of creative merit to them, trademarks by themselves may not be creative. For example, the blue and white Oreo packaging and the font used on the Oreo brand packages aren’t creative or unique—but they have developed, in the public eye, a connection to the Oreo brand cookies.

What About Sounds?

You can absolutely trademark a song, lyric, or jingle. But can you trademark just a sound? At first, you may think that this would be impossible. But when you think about it, there are a lot of sounds that have become uniquely associated with a brand.

Just think of the sound that you hear when you turn on Netflix. That sound has become so associated with the company, that it even holds an annual convention or festival, called, relating to the sound, “Tudum.” If you’ve ever used HBO or HBO Max streaming services, you may have noticed a sound that is akin to static before the show or movie plays.

In the early internet days, sounds like America Online’s “You’ve Got Mail” would be a great example of a sound being trademarked (in addition to the actual phrase).

Uniqueness

To get trademark protection, the sound must be unique; you cannot trademark everyday sounds. For example, you could not just put the sound of a train whistle in your commercial and try to trademark it.

While you don’t have to invent the sound from scratch, it does have to have some uniqueness, or something that makes it different from an everyday sound. Think of breathing; nobody would ever argue that you can trademark the sound of someone breathing. But the unique, heavy, rhythmic sound of Star Wars’ Darth Vader breathing? That certainly is trademarked, and protected, having acquired a secondary meaning in the eyes of the public.

If your trademark isn’t unique enough it will draw challenges from others who might use that sound, and who fear being sued for infringement if you own a trademark on that sound.

Sounds in Copyrighted Works

Note that you could include a common or generic sound, as part of a larger, copyrighted work. For example, a plain train horn would not qualify as something that could be trademarked. By itself, it cannot have a secondary, protectable meaning—it’s too common.

But if you created a song and there was a train horn or whistle sound in it, the entire musical work could qualify for copyright protection, with the whistle sound as part of that song.

Let the West Palm Beach commercial litigation lawyers at Pike & Lustig help you with your copyrights, patents or trademarks, whether you’re creating or protecting them from infringement.

Source:

uspto.gov/trademarks/soundmarks/trademark-sound-mark-examples