A sound trademark must be extremely unique to the point of becoming a subliminal indicator in the listener's mind, so the person hearing it associates it with an event or specific source. It's extremely hard to get a trademark on a sound because the standards are so strict. NBC was the first entity to successfully register a trademark for a sound in 1978. Even after 40 years, it's still not easy to obtain a sound trademark.

The Lanham Act

The law that allows for registering trademarks, the Lanham Act, does not preclude sound for use in commercial endeavors. Sound trademarking just hasn't been a part of marketing practices for that long in comparison to other branding techniques. One complication associated with branding a sound is that your entity has to be the biggest, or one of the biggest, in the market before a sound can subliminally plant itself in listener's minds.

Copywriting Sounds Instead of Trademarking Them

As a rule, it's easier for businesses to copyright sounds than it is to get a sound trademarked. As soon as the sound is created in a tangible form, it's copyrighted under US copyright laws. Trademarks stay active as long as the entity renews it and is using it, while copyright expires six decades after the death of the creator. It's possible to copyright first and then apply for a trademark before copyright ends if needed. The copyright is enough to support your claim of owning the sound if someone tries to use it without permission.

What Makes a Sound Mark Protectable

Commonplace sounds can't be trademarked. Commonplace sounds include things like alarm clocks and other electronic signals. Only sounds that are distinctive, arbitrary, and unique are allowed to be trademarked. Functional sounds also cannot be registered as trademarks. Functional sounds include:

  • Sounds that are an essential element to the way goods and services are used
  • Sounds that affect the cost of goods and services
  • For example, if giving one organization exclusive use of a sound would put competitors in a bad spot

Noise-Making Goods

Sound trademarks for merchandise that makes noise are only registerable when it can be shown that the sound is distinctive to those goods and substantially exclusive. Continuous use of around five years is also required before a claim of distinctiveness can be submitted. The paper application for a sound trademark must be marked as a request for a Non-Visual Mark. The option to select it as a request for a sound mark is also offered via the online application.

Submitting the Sound File

In addition to the form, a sound file must be submitted for review for trademarking purposes. If the application is submitted digitally, the sound mark can be attached to the application in digital format. If the application is submitted on paper, then the applicant needs to include a CD, DVD, audiotape, or videotape. The audio file size needs to be 5 MB or less if submitted digitally. A detailed description of the sound must be included when applying. The application also has to show how the sound is used in relation to the goods and services in question.

Can People Recognize the Sound if it's Hummed?

Most of the time, trying to register a sound mark doesn't work out for businesses. You basically have to be able to hum the sound bite to someone and have them tell you right off where it's from or you won't be able to successfully convince the Trademark Office that your sound has pierced the subliminal mind of people who hear it. While trademarking sounds is a unique advantage in marketing, copyrighting also works for most businesses with equivalent results.

A sound trademark is pretty much just what it sounds like. An organization develops or arranges a unique sound clip. This must be done through a combination of sound effects and music. After the sound creation is finished, the organization can get it officially licensed and then use it in marketing to customers so customers begin to think of the company every time they hear the sound. This type of sound familiarity is common on TV when the intro music begins to play.

If you need help with sound trademark issues, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.