We all know trademarks, including sound marks, are source identifiers, providing their owners with exclusive rights to use brand names, designs, logos, and slogans to market their products. To customers, trademarks are unique visual and emotional cues that trigger special relationships with companies and under US Trademark Law, a sound or a musical melody can function as a trademark.
The Trademark Manual of Examining Procedure in the United States Patent and Trademark Office (USPTO) states:
“To show that a sound mark actually identifies and distinguishes the goods or services and indicates their source, an applicant must submit a specimen that contains a sufficient portion of the audio or video content to show how the mark is used on or in connection with the goods or services.”
Under the rules, a sound mark operates exactly the same as any other trademark under law, facing similar trademark clearance issues such as the likelihood of confusion or merely descriptiveness, in addition to other levels of scrutiny. The only difference is, the specimen submitted is usually an audio file, rather an image of a wordmark or logo (design mark) being used in commerce in connection with the goods.
FAMOUS SOUND MARKS
One of the most famous sound marks in the United States is U.S. Registration No. 916522 for the NBC Chimes (play sound). When a consumer hears this sound, the NBC brand of entertainment and media broadcasting is recalled, just as it would be recalled if the famous NBC Peacock logo was visually displayed. And that is why the chimes function as a trademark: because they identify the source of the services.
Another famous sound mark is U.S. Registration No. 1395550 commonly known as the MGM Entertainment Roaring Lion. This sound (playback here), which is not a musical tone as in the NBC example above, but functions exactly the same as any other trademark because it identifies the source of the services, in this case, entertainment and movie publishing, when heard, just as the famous MGM logo Leo the Lion identifies the source.
To file a trademark application in the USPTO for a sound mark or any other type of trademark, brand or logo, entrepreneurs, tech startups and other trademark owners should consider consultation with an experienced trademark attorney who can advise on issues of trademark functionality, trademark clearance and likelihood of confusion, and filing the proper federal trademark applications in the USPTO as needed.
Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, trademark protection, and “the internet of things”. David was recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal. Office: Ph: 310-751-0181; david@latml.com.
Disclaimer: The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship. All trademarks are the property of L.A. Tech & Media Law Firm or their respective owners. Copyright 2019. All rights reserved.
