Tuesday, September 11, 2007

Sound Trademarks – Nokia Gets a Registered Trademark for its Default Ring Tone

One of my favorite trademark issues is registering a trademark for a sound. Some people are surprised that a company could get a trademark for a sound. But just think about the 3 note “NBC” jingle or the MGM’s lion roar or Intel’s 5 note ding that accompanies the Pentium processor logo – and one can see how a sound can be used as a source identifier. Harley Davidson tried to register the annoying “put-put” sound made only by Harley Davidson motorcycles, but abandoned the application after years of fighting several companies that were opposing Harley’s application before the TTAB.

Nokia now joins these famous trademark sounds. On September 4, 2007, Nokia received a registration for the default ring tone on all Nokia phones. See Reg. 3288274 . Wikipedia has a page describing Nokia’s tune (including a sound link for those who don’t have the tune emblazoned in their head), which is an excerpt from Francisco Tárrega's Gran Vals.

In order for an applicant to obtain registration of a sound mark, the applicant must provide the following types of information and documentation:

  • an explanation as to whether the identified sound serves any purpose as used on the goods and/or services;
  • an explanation as to whether the identified sound is a natural by-product of the manufacturing process for the goods and/or services;
  • any available advertising, promotional or explanatory literature concerning the goods and/or services, particularly any material that relates specifically to the proposed mark;
  • an explanation as to the use of sound in applicant’s industry;
  • a statement clarifying any other use of sound by applicant; and
  • an explanation as to whether competitors produce the goods and/or services with the identified sound.

See In re General Electric Broadcasting Co., Inc., 199 USPQ 560 (TTAB 1978); see also id. at 563 (emphasis added):

[I]t is believed that the criteria for the registration of sound marks must be somewhat different from those applied to the average trademark notwithstanding that more often than not, they do not fall within any of the proscriptions set forth in Section 2(a) through (e). That is, unlike the case of a trademark which is applied to the goods in such a manner as to create a visual and lasting impression upon a purchaser or prospective purchaser encountering the mark in the marketplace, a sound mark depends upon aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound 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 is struck.

For a complete list of sound marks, just do an Advanced Search on PTO’s TARR database and type “(6)[MD]” (excluding quotes). The PTO also has a special page for sound marks with accompanying MP3 files.