Sound Marks
By DEBORAH R. GERHARDT and JON J. LEE. Full Text.
A lion roars just before a film rolls. A doughboy giggles. A giant green man laughs a hearty, “Ho, Ho, Ho.” These iconic sounds are all federally registered as trademarks. They identify specific brands and distinguish their products and services from the competition. Human brains treat sounds like these as catego- rization tools and cognitive shortcuts—ideal trademark symbols. But what about the sounds your favorite toys or electronic devices make? Or those made by a fictional character in the latest block- buster?
This Article tackles these issues and others. We push back against the widely-held belief that all unconventional trade- marks—product designs, colors, scents, flavors, and sounds—are conceptually similar and collectively less likely to receive trade- mark protection.
First, we review scientific literature on how humans process sound. Next, we explain how trademark law sorts sounds compared to other unconventional symbols in determining whether they may be protected as trademarks. Third, we empirically analyze the prosecution of sound marks before the United States Patent and Trademark Office over the past four decades, showing how different categories of sound mark applications fared in the federal registration process.
Contrary to the common assumption that all unconventional marks face similar barriers to publication and registration, sound mark applications are much more likely to be successful than those for other unconventional marks—approaching the success rates for word mark applications. At the same time, sound marks are not a homogeneous category. They are a large, varied set. Sometimes categories of sound marks succeed with the high frequency typical of word marks, but others must overcome the more exacting standards of product design trade dress. After exploring reasons for this difference and other dynamics revealed in our empirical research, we conclude with recommendations for scholars, practitioners, and policymakers interested in the untapped power of sound marks.