At our law firm, we help people and companies protect their brands through trademark registration, licensing and enforcement. People usually think of trademarks for company and product names, slogans, logos, designs, phrases or symbols that are distinctive and associated with the promotion of goods or services.
But many people are not aware that if all the requirements are met, U.S. law allows the registration of trademarks for sounds, scents and colors. While these are much rarer than the usual kinds of registered marks, trademarks for aspects of products connected with the senses can be lucrative and iconic.
Most Americans immediately recognize the three-note chiming series played on television to identify NBC. This sound was the first to receive a U.S. trademark in 1971. According to the Trademark Trial and Appeal Board, a sound is protectable if it is “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 with which it struck.”
Other trademarked sounds include:
- MGM’s roaring lion
- Green Giant’s HO HO HO
- Pillsbury Doughboy’s giggle
- American Family Life Assurance duck quacking AFLAC
- “Save Big Money At Menards” banjo musical jingle
- TiVo popping sounds
The Washington Post recently reported that the U.S. Patent and Trademark Office has granted a scent mark to Hasbro for the scent of Play-Doh, which most Americans immediately can recall and associate with the product. The Post cites the USPTO for the figure that this brings the number of active scent marks registered to only 13.
The article quotes an intellectual property expert as saying that it is “relatively difficult” to trademark a scent. There is a distinction between scents associated with the function or purpose of a product like perfume or room freshener (which are properly patentable) and scents associated with brands. Think a scent trademarked for use within a retail store so that people associate the scent with that store’s branding.
A color may be protectable if it is part of the perceived identity of a brand associated with goods or services or with the source company. Examples of trademarked colors include 3M Canary Color (think Post-It notes) and Wiffle Ball Bat Yellow. Generally, a color trademark limits use of a distinct color within a particular market, but not outside the market in which the color is protected. For example, using the 3M yellow in a notebook product would likely infringe, but using it on a car would not.
Entrepreneurs and companies should think broadly and creatively about aspects of their brand that may go beyond traditional product names, slogans or symbols. Branding that uses other human senses can be powerful and may be protectable in trademark.