Sound in Trademark: Can You Name That Tune?
The MGM lion’s roar; the NBCUniversal tune; the Harlem Globetrotters’ “Sweet Georgia Brown.” Sounds can often identify brands. While we tend to think of brands as something visual like a word, design, color scheme, etc., anything that identifies the source of a good or service can be a brand (or trademark as lawyers like to call them). Many believe sound to be a nontraditional trademark.
In the US we must demonstrate that we are using a brand to get a registration. The USPTO (aka the Trademark office) has tight rules for what
is acceptable as an example of use. When it comes to services, you can simply show that the brand appears in advertisements. For goods, you need to show the brand as it appears on or in connection with the good as it travels through commerce. However, trademarking for sound works a little differently.
Duracell’s Sound Check
The Duracell Company just won a battle to join this group. Duracell convinced the Trademark Trial and Appeal Board that its three-note “slamtone” was eligible for registration. Oddly, the hold-up wasn’t that the slamtone was capable of identifying the source of Duracell’s batteries. The obstruction was where and how Duracell used its slamtone.
The Trademark Office came to the conclusion that the examples of the slamtone are “mere advertising” and not “displays associated with” Duracell’s batteries. Basically, Duracell has some of the ads to play in the stores where Duracell batteries are sold as a form of “audio messaging” (e.g., over the store speakers at CVS). The issue is whether these in-store audio messaging are “directly associated with” the batteries being sold.
In the end, the Trademark Trial and Appeal Board overturned the Trademark Office’s refusal to register the slamtone. Undoubtedly this is not the end of the road, as Duracell must now face third party opposition, but the biggest hurdle is clear.
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