Depending on your age and interests, you may instantly recognize certain sounds – whether it’s the “chung-chung” that opens each Law and Order episode, Darth Vader’s raspy, mechanical breathing under his mask or the giggle of the Pillsbury Doughboy.
Those familiar sounds are so important to the brands they come from that they’ve all been trademarked. So, yes, you can trademark a sound – but it isn’t easy.
Sounds are notoriously difficult to trademark because of their nature
Trademarking a sound is clearly possible, but there have been hundreds of failed applications over the years from companies that have tired. Harley-Davidson, for example, famously tried to trademark the sound of its engines for years – and never succeeded.
Nothing in the Lanham Act, which is the basis for modern intellectual property law, prohibits trademarking a sound. However, it was a case involving broadcast giant NBC that eventually determined the rules that courts use today when it comes to the exclusive use of sounds.
To qualify for a trademark, according to the law, a sound must be “so inherently different or distinctive that it attaches to the subliminal mind of the listener, to be awakened when heard, and to be associated with the source or event…”
In other words, Homer Simpson’s “D’oh” and the notes associated with the appearance of the shark in Jaws are the sort of sounds that people instantly recognize and attach to their source – but anything less unique would not.
Are you interested in protecting a sound that you associate with your brand from misuse by others? In a lot of cases, audio can be more easily protected under copyright than trademark law, but you probably need to get some experienced legal guidance so that you fully understand your options.