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Is it difficult to ("chung chung") trademark a sound?

We are all familiar with these distinctive sounds and phrases:

  • The whistled tune of “Sweet Georgia Brown”
  • The Tarzan yell
  • “You’ve got mail”
  • “D’oh!”
  • “Clap on, clap off, clap on clap off, the Clapper”

These sounds and phrases – along with a very select few others – are trademarked and can’t be used without the owner’s permission.

While getting a trademark for a unique name, symbol or device might seem commonplace, sounds are all around us – how can a sound be unique enough to warrant a trademark?

The key is distinctiveness

While there are hundreds of thousands of trademarks, there are fewer than 1,000 trademarked sounds. That’s because it is extremely difficult to trademark a sound.

The first hurdle is that the product must have such a massive presence in the marketplace that the sound you seek to trademark has seeped into the public consciousness.

In fact, the public’s subliminal consciousness of the product described by the sound is the acid test. If a listener immediately thinks of the product when they hear the sound, then it is eligible for a trademark.

One of the best examples it the undefinable but immediately recognizable “chung chung” of the “Law & Order” television franchise. You might not know what that sound is, but you know exactly where it comes from.

Here are a few other examples of sound trademarks.

  • The NBC chimes
  • MGM’s roaring lion
  • Federal Signal’s police siren
  • Pillsbury’s doughboy giggle
  • AFLAC’s duck quack
  • Zippo’s lighter click
  • Green Giant’s “Ho ho ho”
  • CBS’ “60 Minutes” ticking stopwatch
  • LucasFilm’s Darth Vader breathing sound
  • MTM’s kitten meow

One that didnt make the cut

In addition to trademarks, sounds can be copyrighted. Since the bar is high to trademark a sound, most companies are satisfied to stay with copyright protection.

But copyrights run out 60 years after the creator’s death while a trademark can remain active if it is renewed and in use. If your product is of such a market penetration and potential duration that a 60-year copyright might not be enough, then trademark protection might be the way to go.

At least that’s what Harley-Davidson thought. The U.S. motorcycle manufacturer wanted to trademark the sound of its V-twin engine’s idle – best described in writing as “potato potato potato”. After a fruitless six-year effort, the company dropped its attempt to seek trademark status for the sound.

If a sound is your business’s face to your clients, you should seek all the protection available. Whether you seek a copyright or full trademark protection, it’s important to have qualified, experienced legal counsel.

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