Apple Registers Startup Sound as a Trademark
Apple recently filed a trademark application to protect their computers’ startup sound. The application was approved by the United States Patent and Trademark Office. (Click here to see Apple’s USPTO registration.) How can a sound be a “mark?”
Sounds can, in fact, function as trademarks, but they have to pass a fairly high bar in order to be registered. The test to determine whether a sound can become a trademark was created in In Re General Electric Broadcasting Company in 1978. In that case, GE had applied to register the sound made by a ship’s bell clock as a trademark for radio broadcasting services.
The Trademark Trial and Appeal Board (TTAB) held that a sound can be a trademark, but that the sound had to be “so inherently different or distinctive that it attaches to the subliminal mind of the listener…an association with a source or event with which it stuck.” This is essentially a reiteration of the distinctiveness requirement for all federally registered trademarks, sounds or otherwise.
The TTAB further distinguished between two types of sounds: those that are “unique, different or distinctive sounds,” and those that “resemble or imitate ‘commonplace’ sounds or those to which listeners have been exposed under different circumstances.” The first group fairly easily clears the distinctiveness bar to act as a trademark. The second kind of sound, however, can only function as a trademark when it has acquired secondary meaning. For a sound to have secondary meaning, it must have some meaning to the public beyond the normal or typical meaning inherent in that sound. For example, the noise a particular animal makes usually does not have a distinct association with a particular brand, but when you watch the beginning of a movie and you hear a lion roar, you associate that with MGM Studios (the MGM lion’s roar is also a federally-registered trademark).
A famous failed attempt at a sound trademark application was Harley-Davidson’s attempt to register the distinctive “chug” of their motorcycle engines. In 1994, Harley-Davidson filed a trademark application with this description: “The mark consists of the exhaust sound of applicant’s motorcycles, produced by V-twin, common crankpin motorcycle engines when the goods are in use.” Harley’s competitors immediately filed oppositions against the application, arguing that various versions of their motorcycles use the same V-twin engine, producing the same sound, and that the sound of the Harley Davidson’s motorcycle engine had not achieved sufficient notoriety to have acquired secondary meaning. Further, the opposing parties argued that the sound could not be trademarked because it was a functional noise, necessary to the use of the motorcycle. You’ll recall that functional elements can’t serve as trademarks. The issue was never decided, however, because after six years of litigation and thousands of dollars spent, Harley abandoned its trademark application.
In another interesting case, GML Inc. v. Mayhew, a sound recording was not given protection as a trademark because a recording cannot be a trademark for itself. The recording must identify goods or services in order to receive trademark protection. In GML, the song did not identify any goods because it was the goods.
The USPTO maintains a list of notable sound trademarks (including pending applications). Here’s a link to the list, including such notable sounds as:
- Yahoo’s yodel
- NBC notes
- Harlem Globetrotters: “Sweet Georgia Brown”
- THX’s “Deep Note”
- Intel’s Pentium Processor three cord note
