Paul C. VanSlyke, Senior Counsel at Hoover Slovacek LLP
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Can you trademark a sound?

Can you trademark a sound? The answer is yes, although it’s a difficult process.

When trademark law was established, it wasn’t envisioned that sound or colors or smells would be viable trademarks. The law doesn’t say you can trademark these things, but it doesn’t say you can’t.

To determine if a sound can be registered, the litmus test is that the sound must be so distinctive that it attaches to the listener’s subliminal mind and when heard, is immediately associated with the source of event.

Potato potato potato

Which leads to the 1978 decision to trademark NBC’s distinctive three-note chimes. Since then, there have been fewer than 1,000 sound trademarks allowed, although many have been tried.

Perhaps the most storied of sound trademarks is one that didn’t happen: Harley Davidson’s attempt to trademark its “potato potato potato” V-twin engine sound. After years of trying, it couldn’t convince officials that it was significantly different than any other engine sound and so it dropped its attempt to trademark the sound.

Other trademarks have been tried or dropped. Keeping a trademark active can be costly, and trademark infringement cases are uncertain if only because there are so few of them in the body of the law.

Chung chung

And speaking of the body of law, perhaps one of the most recognizable sound trademarks is the “chung chung” that accompanies every “Law & Order” episode since the first version of the first show premiered in 1990.

Here are a few of the sound trademarks on file with the U.S. Patent and Trademark Office.

  • NBC: Chimes
  • MGM: Roaring lion
  • Harlem Globetrotters: Whistled tune of “Sweet Georgia Brown”
  • LucasFilm: THX logo theme; Darth Vader breathing; light saber activation
  • Classic Media: “William Tell Overture” (Lone Ranger theme)
  • Edgar Rice Burroughs, Inc: Tarzan yell
  • America Online: “You’ve got mail”
  • Federal Signal Corp.: Siren
  • Pillsbury: Childlike giggle (Pillsbury Doughboy)
  • Twentieth Century Fox: “D’oh!” (Homer Simpson)
  • American Family Life Assurance: Duck quacking “AFLAC”
  • Time Warner Entertainment: Looney Tunes theme song
  • Joseph Enterprises: “Clap on, clap off, clap on clap off, the Clapper”

Here are a few of the trademarks that either didn’t get approved or were allowed to lapse:

  • Harley Davidson: Potato potato sound of V-twin engine
  • General Mills: “Ho ho ho” (Green Giant)
  • Microsoft: Chimes

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