An introduction
Brands put a lot of energy into creating the perfect sound identity; whether that be a sound logo, a brand song, a brand voice, or a jingle. These sounds can become key pillars of a brand’s identity. When you’re able to recognise a brand for how it sounds alone, it's a sign there is a hugely powerful brand asset at play. But what can you do to protect that intellectual property?
Trademarking your logo, brand name and other brand assets are regular practice for brands across the world, but considering intellectual property protection for your brand sound has been lagging in this space.
So let’s explore what sound trademarking means, some best practices for registering your sound mark, and the brands who have tackled trademarking their audio identity already.
What is Trademarking?
A trademark is any word, phrase, symbol, design or, in this case, sound, that unmistakably identifies your goods or services as belonging to you. A sound trademark does just this: it is a sound or a series of sounds that you trademark where sound is used to uniquely identify the commercial origin of products or services.
Sounds are one of the ‘non-traditional’ trademark formats (alongside holograms and motion). They are not as common as other categories such as words, logos and slogans, but they do exist. The rise of sonic branding combined with easier restrictions and regulations around sound trademarking means more and more brands are opting to protect their sound in this way.
Paramount to sound trademarking is distinctiveness - the sound must be attributable to your brand, and bring to mind the brand they are representing without any visuals.
What are the benefits of trademarking your sonic identity?
Sound trademarks are in place to do three things: provide intellectual property protection, help prevent fraud or counterfeiting, and identify the source of the goods or services.
Trademarking your sonic identity not only means you have copyright protection in place, but additional brand protection of that sound.
Audio trademarking - is it different from regular trademarking?
Sound and audio trademarking is still fairly rare for brands to engage with: only around thirty sound marks were registered in 2023 with the EUIPO (European Union Intellectual Property Office), compared with more than seventy-five thousand word marks. This could be because the power of sonic branding is still underutilised compared to visual branding, but also because it has traditionally been much more difficult to register a sound mark than a traditional mark.
Until recently, there have been stricter restrictions around registering a sound mark. Pre-2017, the EUIPO required sound marks to have a graphical representation of your sound. Your sound mark needed to be represented on a musical staff made up of notes. A sonogram wasn’t accepted, it had to be on a physical score.
Only melodies can be represented in this way, meaning notes on a stave. This excludes a massive amount of sound and noise. For example; a dog barking, any electronic noises that don’t have a pitch, or nature sounds like waves crashing - these things can’t be mapped onto a stave, and sonograms were not accepted.
The recent EU trademark reforms have made sound a much easier process. Not only is sound considered a more regular form of trademarking by the EUIPO, but the graphical representation requirement has been replaced in favour of a test of clarity and precision and simply requires a digital upload of the sound. Whilst a wider range of sounds (sound effects, jingles, sounds of nature, noises, melodies with or without words, etc.), can all now be trademarked in the same way as “traditional” trademarks, they only pass the requirement criteria if they meet the requirement as a strong, distinct commercial identifier will they be accepted.
Whilst it is positive that sound trademarks no longer need to be represented graphically, it can be more difficult to show that these marks meet the requirement of distinctive character and brand identifier.
Tips for sound trademarking - things to think about for a successful sound trademark application
If you’re hoping to register your brand sonic identity as a trademark, here’s what you need to consider:
Distinctiveness and uniqueness:
- It must be an original, distinctive sound that helps set your brand apart. It must be memorable and have a certain level of impact for the audience to perceive it as a brand sound.
- In the unlikely event of an infringement case, courts will likely find the highly distinctive ones to be stronger and the more commonplace ones to be weaker.
- Your sound must not infringe on someone else’s sound. Consider checking with a musicologist that your sonic logo is unique and distinct before filing for a trademark application.
Brand awareness:
- It must have what, in legal terms, is called “secondary meaning” - i.e. must be connected to your brand. You have a higher chance of successful trademarking if your sonic identity is already in the world and well-known as a piece of marketing material connected to your brand.
- Creating a sonic identity that brings brand awareness in this way is a highly considered process. It’s important that your sound identity resonates with your target audience and fits your brand in the right way. You might want to consider using sound market testing as part of your process to see how memorable, attributable and recognisable your sonic identity will be when it goes to market.
- The US Patent and Trademarks Office requires that applicants demonstrate that the sound has been used substantially and continuously to become closely associated with their brand.
- You might be required to provide data on the salience and attribution of your sonic identity, including reports on how the sound is being used in commerce and subsequent consumer surveys.
Must be non-functional:
- Meaning, avoid any sort of product sound. For example, the sound of an alarm clock or a toilet flushing are integral to the functioning of the product, and could also be associated with your wider category or competitors.
- Harley Davidson motorcycles attempted to trademark their engine sound. Their competitors strongly opposed this trademark application, because the sound of their motorcycle engine was not unique to them but used across multiple motor brands, and in the end, HD abandoned their application.
Consider percussion and rhythm:
- Percussive, staccato (sharp/spiky) words and sounds are easier to trademark because they have an easier time imprinting on our brains when compared to an ambient, soft, unstructured sound.
Be careful with existing sounds:
- Your sound mark can be derived from existing sounds (like the MGM lion’s roar), as long as the use of it in a commercial case is unique.
Avoid any sound that is in the public domain like a famous traditional melody:
- These songs, melodies or sounds are open for all to use and, therefore cannot be distinct to you.
Avoid overtly simple sounds:
- Just one note or pitch cannot be attributed to any brand.
Avoid natural sounds:
- Whilst they’re not impossible to trademark, synthetically created sounds are easier to own and trademark than natural sounds, for example, the sounds of the ocean.
Copyright vs Sound Trademarking
Copyright protection is in-build to any brand’s sonic identity - as copyright protections exist for any creative work, whether that be written, sonic, photographic or design, digital or analogue. Most brands accept this level of protection, but some decide trademarking gives them an extra level of protection.
It’s useful to understand the key differences between copyright and trademark protection.
Trademark protections exist for sounds that are used for specific brands.
The most famous sound identity trademarks
There are a TONNE of sonic logos in the world, but not a huge amount of them have been trademarked. The most famous and traditional trademarked sounds come from the world of cinema; The MGM Lion, the NBC Chimes, the 20th Century Fox Fanfare, the Looney Tunes Theme and the Lucasfilm THX Deep Note.
Then you’ve got the most famous branded sonic identities of the 21st and 20th centuries; Intel, McDonald’s, AT&T and Netflix. The power of these sonic identities, and their ability to pass trademarking criteria, is their consistency of use. Netflix has been using their Tah-Dum to open every piece of Netflix entertainment for over 10 years, whilst Ronald’s “Ba da bap ba ba” has been on the top of marketers’ “sonic identity inspiration” board for over 20 years. These are unmistakably brand-attributable.
Sound trademarks in their rarer form can come in the form of famous moments from movies, characters and moments in TV and cinema: like Rue’s famous 4-note whistle from The Hunger Games trademarked by Lions Gate Entertainment and Homer Simpson’s “D’oh!” from The Simpsons. They are unique, distinct identifiers, and as such, successful sound trademarks.
The technicals: What is the next step to trademarking your sonic identity?
Trademarking your sound differs in process from region to region and usually requires application across multiple global intellectual property offices depending on where your sound trademark will be used. Check out the WIPO, the EUIPO, and The USPTO for their specific requirements.
If you’re interested in trademarking your sound, or in building a sonic identity, we’re all ears. Email us on info@dlmdd.com
Disclaimer – The information provided in this article, "A Complete Guide to Sound Trademarking: What It Is and How to Trademark Your Sound," is for general informational purposes only and does not constitute legal or professional advice. While we strive to ensure the accuracy and currency of the information, laws and regulations regarding trademarks, including sound trademarks, vary by jurisdiction and are subject to change.
This article provides an overview and may not cover all aspects of sound trademarking or intellectual property law. For personalised guidance, DLMDD can connect you with experienced intellectual property attorneys or legal professionals to address your specific needs.
