marking the sound

Education
Written By Kimberly Potvin

The fascinating world of Sound Marks

Many people associate a trademark with something that is visible to the naked eye: a product logo, a company name, or an icon or symbol that has a graphic form. But for those of you who are new to the goodness of trademarks, sounds can also qualify for protection. For something so nebulous, that cannot be seen or placed on a product in a visual way, these little gems are lurking about in the most interesting and surprising places. 

Take a break out of your day and learn a bit more about some of my favorite and entertaining sound marks.

WTH is a sound mark

A trademark has a very important job. It tells consumers the source and origin of a certain type of goods or services. This identifier is usually a word, a design, or a symbol, but surprisingly, a sound can also reliably point a consumer back to a single identifiable source. These sounds can be registered and protected just like other trademarks that we easily recognize (think the Nike Swoosh, the Apple logo, or the McDonald’s golden arches as examples).

The Trademark Trial and Appeal Board in Gen. Electric Broad. Co., 199 USPQ 560, 563 (TTAB 1978) laid out the definition of a sound mark. A sound could function as a source indicator when it “assume(d) a definitive shape or arrangement" and “create(d) in the hearer’s mind an association of the sound” with the goods or services. A later decision refined this framework, holding that sounds could be registered when they were “unique, different or distinctive" enough to attach the sound to the goods or services in the listener’s mind, thereby creating a clear association at a later date. Commonplace sounds were excluded unless they could clearly demonstrate “acquired distinctiveness.”

For the purpose of registration, there are four clear elements that help a sound qualify for protection:

  1. Distinctive. The sound must be distinctive and not commonly associated with the goods or services. In other words, it should be immediately recognizable to an average listener and able to be connected back to the source.

  2. Non-functional. The sound should not be functional. It should be non-essential to the purpose or use of the product and should not impact the cost or quality of the goods or services. In layperson’s terms, the sound cannot be necessary for the operation of the goods or services.

  3. Secondary meaning. The sound must have acquired a secondary meaning. This means that the sound has become uniquely associated with the source in the mind of the consumer (often done through extensive use or promotion).

  4. Documented (specimen). When applying for registration, the applicant must provide an example demonstrating how the sound is used to identify the goods or services. In many cases, this is an audio recording, but could also be a video or or other form of audio documentation.

Good, old chimes

The first example of a sound mark in the United States actually started not where you might expect. It started with office equipment.

In 1927, NBC needed a way to inform affiliate stations when to switch program sources and decided to use audio cues for their local announcers. The result was a short chime sequence that was played over the air. The sequence started with seven notes, but was trimmed down to three distinct sounds by the early 1930s, since three notes were easier for the individuals striking the metal plates to consistently hit. The sound wasn’t intended to identify a brand, but was office equipment used to communicate to stations when to make a change to their network programming (sort of like an audio memo or reminder). Listeners heard the three chimes sound for years, and over time, the sequence of sounds stopped indicating that there was a programming change and started to be directly associated with NBC as a brand.

NBC Three Chimes

The law caught up to the NBC chimes in 1946, when the Lanham Act recognized marks used to identify service marks (marks that were used to identify unique services) from trademarks (marks that were used to identify unique products). In November of 1947, NBC applied for protection of the three chimes sound and registration was granted in April of 1950, making it the first purely audible mark ever registered in the United States.

As a quick surprise (since I don’t want anyone to get bored), NBC then let the registration expire in November of 1992. But prior to this happening, in 1971, NBC filed a separate registration for the sound covering television broadcasting. This registration is still alive and actively maintained today, so in reality, the oldest living sound mark in the country is actually a sequel.

The sounds that stick

Some of the sound marks covered here may be known to the average reader, but really, these are the ones that I find the most interesting. Some of this I owe to nostalgia and the joy of watching movies and television programs as a kid, and some of it may be due to my sense of surprise and delight when I learned, over time, that these sounds were protected. Either way, these are the ones that stick in my head and I often find myself thinking about on repeat.

MGM lion roar. First place goes to this sound, which was registered in June of 1986, even though the lion roar had been opening MGM pictures since 1928. In reality, there had been eight different lions representing MGM over the years with the most famous being Leo the Lion in 1957. These lions were used in the logo sequence of the film, and although there were six decades of famous use, it took a while for the company to file to protect this sound, described simply as “a lion roaring.” Most of us recognize this fierce roar from the movies, but may not have guessed it was also a sound mark. (U.S. Trademark Reg. No. 76163189)

MGM lion roar

Pillsbury Doughboy giggle. Next is this fun sound mark, filed in the early 2000s, and described as “a childlike human giggle.” The sound was engineered to ensure consumers would feel warm and snuggly toward a dough-based person and associate that with a desire to purchase soon-to-be baked goods. The giggle was used anytime the doughboy was poked in the stomach, which 100% might make me want to buy some biscuits. (U.S. Trademark Reg. No. 76163189)

Pillsbury Doughboy giggle

Darth Vader breathing. All of us should recognize this sound mark, which was created by Ben Burtt in the mid-1970s, filed for protection in March of 2008, and registered in May of 2009. The official description explains the sound as “ rhythmic mechanical human breathing created by breathing through a scuba tank regulator.” This goes hand-in-hand with a variety of other protected marks for the Star Wars franchise, including the sound of a lightsaber being activated. (U.S. Trademark Reg. No. 77419252)

Darth Vader breathing

Mockingjay whistle. This iconic sound was filed by Lions Gate in December of 2011 to protect the endearing four-note whistle from The Hunger Games. The application spells out the sound note-by-note, which is appreciated by those of us who find joy in the details. The notes are described as “a human whistling a G4 eighth note, followed by a Bb4 eighth note, followed by an A4 eighth note, followed by a D4 half note, in the key of G minor.” There is nothing better than a fictional rebellion signal living in the sound mark hall of fame. (U.S. Trademark Reg. No. 85409089)

Mockingjay whistle

60 Minutes stopwatch. This sound mark might be a favorite on my list, because it is not a melody, a voice, or a sound that belongs to a character. It is simply a stopwatch ticking down seconds of time, creating an aura of precision and accuracy. The description is very simple, but it is easily associated with the series, 60 Minutes, reminding me of the program anytime my kitchen timer is clicking down the seconds until my sourdough loaf is done. (U.S. Trademark Reg. No. 85793891)

60 Minutes stopwatch

Simpson d’oh! The Simpsons debuted in December of 1989 and this sound mark was filed for protection in July of 2001, although the registration did not come through until April of 2008. The delay was partially due to the sound often being scripted as an “annoyed grunt” versus “D’oh!” and was also related to some changes that Twentieth Century Fox Film Corporation made to the filing.  Seven years of process and protection was finally received for Homer’s unique expression of annoyance. (U.S. Trademark Reg. No. 76280750)

Simpson's d'oh!

Green Giant ho-ho-ho. The Green Giant, an invention of The Minnesota Valley Canning Company, changed a lot over the years. In the 1950s, the character was alienating customers and missing the natural association with the lush, soft, beauty of the American heartland that the company desired. The character went through a series of changes, including the introduction of “Ho, Ho, Ho” as an ending catch-phrase in 1961. Three syllables is all it took and you have one of the most beloved produce-themed sounds known today. (U.S. Trademark Reg. No. 75821499)

Green Giant ho-ho-ho

The sounds that got away

There are a variety of sound marks that never made the cut. 

For example, our friends at Harley-Davidson. In 1994, the company applied to register the exhaust sound of its V-Twin engines, which riders often recognize even when heard from a distance. The goal of registering this sound collapsed under competitor pressure, many of whom believed the sound was ineligible for protection. The first issue was the concept of distinctiveness in that other engines built of similar designs all made very similar sounds. Second, was the concept of functionality in that the sound is technically a byproduct of how the engine operates. And finally, the sound was considered unstable, often shifting with the motorcycle model and the throttle, which made it difficult for Harley-Davidson to argue that there was a definitive, singular sound to protect. Harley fought for six years to try and protect the sound, but eventually walked away.

Another interesting example happened in March of 2013, when Anheuser-Busch filed to register the sound of a beer can opening (described as a click, a pause, and then a deeper click). The examining attorney decided to test the distinctiveness of the sound. They went down to their basement with five different cans of beer and a can of cola, turned on a camera, and opened them one-at-a-time to demonstrate the identical nature of the sounds. The application was refused on the basis of this examination and it was found that the sound failed to function as a unique and distinctive sound. In other words, the sound of a beer can opening was simply the sound of any can opening.

The underlying pattern

The sounds that earn protection are ones that are distinct, associated clearly with goods and services, and are non-functional. For entertainment, specifically, these are often a composed sequence, an intentional noise, a planned audio clip. They are rarely known as sound marks from inception, but build up over time, and through association and recognition, become a well-loved and connected part of a brand’s story.

For those of us that have grown up with these different sound marks, they are also a walk down memory lane. Moments of excitement and trepidation in a movie theatre, listening to commercials during Saturday morning cartoons, or moments of laughter, excitement, or awe during an entertainment experience. So, next time you hear a sound and associate it with a brand, you should stop and wonder about whether you just had the luck of hearing a sound mark!

Sources

Kimberly Potvin
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