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If a tree falls in the forest, can you trademark that sound?

If you have a product that is associated with a distinct sound or series of tones, you may be curious whether you can trademark this sound. In theory, it’s possible to trademark a sound. NBC accomplished such a feat in 1978. However, the reality is the path to obtaining a sound mark is arduous and few companies are able to meet the strict standards required to trademark a sound.

Reaching the subliminal mind of the listener

The Lanham Act is responsible for the bulk of modern trademark law. The Act allows for “any word, name, symbol, or device” to be registered as a trademark. Sounds are neither included nor excluded under this definition. Because the Act doesn’t speak to sounds explicitly, one must turn to the courts for guidance.

In the decision that granted NBC a sound mark, the court held that in order to qualify for trademark protection a sound must be “…so inherently different or distinctive that it attaches to the subliminal mind of the listener…”.

This is obviously a high bar to clear. Harley Davidson found this out when it withdrew its application to trademark the sound of its motorcycle engines. Bikers may be able to distinguish the sound of a Harley from those of other motorcycle manufacturers, but members of the general public would probably be hard pressed to identify a rumble as Harley-specific.

Is any type of protection available?

In all likelihood, the sound associated with your product will probably fail to reach a listener’s subliminal mind. However, this doesn’t leave you entirely unprotected. It’s a much easier path and often more prudent to seek copyright protection for a sound. A skilled professional can help determine the options that will help you best achieve your goals.

On behalf of Crockett & Crockett posted on Tuesday, July 28, 2020.

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