Most people think of trademarks as brand names, logos, and slogans. But trademark protection can also cover certain nontraditional elements, including sounds, colors, scents, motion, and even product textures.
So, can you trademark a sound? Yes. A sound can function as a trademark when consumers recognize it as identifying the source of particular goods or services. The same basic idea applies to certain colors and scents, although the requirements can be much harder to satisfy.
The USPTO recognizes several types of nontraditional marks, but each must function as a source identifier and meet the applicable requirements.
What Is a Nontraditional Trademark?
A nontraditional trademark is a mark that does not rely only on traditional words, names, or logos.
Examples include:
- Sounds
- Colors
- Scents
- Motion
- Product shapes
- Packaging designs
- Textures
These elements can become closely associated with a particular business. When consumers recognize that feature as identifying the source of goods or services, it may qualify for trademark protection.
However, not every sound, smell, or color can be registered. The mark generally must function as a source identifier, and it cannot be functional when functionality prevents trademark protection.
Can You Trademark a Sound?
Yes, can you trademark a sound? The answer is yes when the sound functions as a trademark and meets the USPTO’s requirements.
A sound mark identifies and distinguishes goods or services through audio rather than through a visual word or logo. The USPTO explains that sound marks can include musical notes, tones, or wording accompanied by music.
For example, a short audio sequence used consistently in advertising can become associated with a particular company. When consumers hear it and immediately connect it with that company, the sound may function as a source identifier.
However, a sound that is ordinary or commonly encountered may need evidence showing that consumers have come to recognize it as a brand identifier.
Sound Trademark Examples
There are many well-known sound trademark examples in the United States.
Some registered sound marks include:
- NBC’s three-note chimes
- The Netflix “ta-dum” sound
- ESPN’s distinctive sports-related sound
- AOL’s “You’ve Got Mail” sound
- The Homer Simpson “D’OH!” sound
- The sound of Darth Vader’s breathing
These examples show that a sound does not have to be a traditional musical jingle to potentially function as a trademark. What matters is whether the sound identifies the source of goods or services.
The USPTO itself confirms that sounds can qualify as trademarks when they indicate the source of goods or services.
What Are USPTO Sound Marks?
USPTO sound marks are trademark applications or registrations in which the claimed mark consists of a sound.
A sound mark application requires the applicant to clearly identify what the sound is. Because a sound is not visually represented in the same way as a word or logo, the application uses a description and an audio representation as required by USPTO procedures.
The sound should have a recognizable structure and create an association between the sound and the source of the goods or services.
What Can a Sound Mark Include?
A sound mark can include:
- Musical notes
- A short melody
- A jingle
- Spoken words with music
- A distinctive sequence of tones
- A distinctive nonmusical sound
The sound must be more than background noise. It needs to function as a brand identifier.
Do Sound Marks Need Acquired Distinctiveness?
Not always. A distinctive, arbitrary, or unique sound may be capable of functioning as a trademark without the same acquired-distinctiveness showing required for some other nontraditional marks.
However, commonplace sounds can face a higher burden. If consumers normally encounter a sound in ordinary situations, the applicant may need evidence showing that consumers have come to associate that sound with a particular source.
For example, an unusual musical sequence created specifically for a brand may be inherently distinctive.
A standard alarm sound, by comparison, would not automatically identify one particular company.
Can You Trademark a Color?
Yes, a color can potentially function as a trademark.
But color marks have strict requirements. A color used as a mark generally must identify the source of goods or services, and the claimed use cannot be functional.
For product color marks, the USPTO generally requires evidence of acquired distinctiveness before registration on the Principal Register because consumers do not normally view a single color as a brand identifier by itself.
Examples of recognized color trademarks include:
- UPS’s brown used in connection with its services
- Owens-Corning’s pink for fiberglass insulation
- Certain distinctive colors used in particular product or service contexts
The key is not simply owning or using a particular color. The color must function as a source identifier in the relevant marketplace.
How Do You Trademark a Color?
To protect a color, you generally need to show exactly how the color is used.
A color trademark application can require:
- A drawing showing the color’s placement
- A color claim
- A description explaining where the color appears
- Identification of the goods or services
- Evidence supporting trademark significance when required
The USPTO explains that color marks can consist of one or more colors applied to products, portions of products, packaging, or materials used in providing services.
Can Any Color Be Trademarked?
No. A color cannot be protected as a trademark when it is functional for the relevant goods or services.
For example, if a particular color provides a practical benefit or affects the product’s cost or quality, trademark protection may be unavailable.
A color also generally needs to develop strong source-identifying significance before it can receive Principal Register protection in the product-color context.
Can You Trademark a Smell?
In limited circumstances, yes.
The USPTO recognizes scent marks, but they are rare and difficult to register.
The most important question is whether the scent functions as a source identifier rather than simply being an attribute or useful feature of the product.
The USPTO states that a scent may be registrable when used in a nonfunctional manner. However, scents that serve a utilitarian purpose are not registrable as trademarks.
Example of a Registered Scent Mark
One well-known example is the scent associated with Play-Doh.
The registered scent was described as a distinctive combination involving a sweet, slightly musky vanilla fragrance with cherry and salted, wheat-based dough notes.
This is very different from attempting to trademark the natural smell of a perfume product.
Can You Trademark the Smell of Perfume?
Generally, this creates a major problem. If the scent is the functional or expected characteristic of the product itself, it is unlikely to qualify for trademark protection.
For example, the smell of perfume is naturally part of the product’s purpose. The USPTO specifically identifies perfume scent as an example of a functional scent that is not registrable.
A scent trademark is more realistic when the scent is added to a product that consumers would not ordinarily expect to have that particular smell.
This distinction is important for businesses considering scent-based branding.
What Is the Difference Between a Scent and a Perfume Trademark?
A perfume company can potentially trademark its brand name or logo for fragrance products.
That does not mean the company can automatically trademark the actual smell of the perfume.
For example:
Potentially protectable:
- Brand name
- Logo
- Distinctive slogan
- Certain packaging
- Nonfunctional scent in an appropriate context
Generally not protectable as a scent mark:
- The ordinary fragrance of perfume
- A functional product smell
- A scent that consumers view simply as an attribute of the product
If your business sells perfumes or fragrances, you may also want to review a class 3 guide when determining the appropriate trademark classification for your products.
Can You Trademark a Motion?
Yes, motion can potentially function as a trademark.
A motion mark can involve a particular animation, movement, or repetitive physical motion that consumers associate with a brand.
For example, a distinctive animated logo that repeatedly appears in a company’s advertising could potentially function as a motion mark.
The USPTO requires the application and specimen to properly demonstrate the claimed motion. For certain motion marks, the specimen needs to show the entire repetitive motion that creates the mark’s commercial impression.
Can You Trademark a Product Shape?
Yes, but product-shape trademarks can be difficult.
A product’s shape may qualify as trade dress if consumers recognize the shape as identifying the source of the product.
However, functional product features cannot receive trademark protection simply because they are distinctive.
The USPTO distinguishes between product design and product packaging when evaluating distinctiveness. Product packaging can sometimes be inherently distinctive, while product design generally requires acquired distinctiveness.
Can You Trademark a Texture?
In limited circumstances, yes.
A distinctive texture applied to a product or packaging may function as a source identifier.
However, if the texture is necessary for the product’s function or affects its cost or quality, functionality can prevent trademark protection.
As with other nontraditional marks, the key question is whether consumers see the feature as branding rather than simply as a product characteristic.
What Is Functionality in Trademark Law?
Functionality is one of the biggest limitations on nontraditional trademarks.
A feature may be considered functional when it provides a useful or practical advantage rather than simply identifying the source.
Trademark law generally does not allow businesses to use trademark protection to obtain perpetual control over useful product features.
This is particularly important for:
- Colors
- Product shapes
- Scents
- Textures
- Packaging features
If the feature is functional, trademark protection may not be available even if consumers recognize it.
Why Are Nontraditional Trademarks Difficult to Register?
Traditional trademarks are usually easier for consumers to understand as brands.
A word such as a company name clearly tells consumers who is providing a product or service.
A sound, scent, or color is different. Consumers may initially see it as part of the product rather than as an indicator of its source.
For this reason, applicants may need substantial evidence showing that consumers have learned to associate the nontraditional feature with one particular source.
The USPTO specifically states that scent marks require substantial evidence to establish that the scent functions as a mark.
What Evidence Can Support a Nontraditional Trademark?
Depending on the type of mark, useful evidence can include:
- Length of use
- Advertising
- Sales information
- Consumer recognition
- Market surveys
- Media coverage
- Exclusivity of use
- Marketing materials
- Evidence showing the feature is promoted as a brand identifier
The exact evidence needed depends on the mark and the legal basis for registration.
A strong application should clearly demonstrate why consumers recognize the sound, color, scent, or other feature as identifying a particular source.
How Do You File a Nontraditional Trademark?
The basic filing process is similar to other trademark applications, but nontraditional marks have additional requirements.
1. Identify the Mark
Clearly determine whether you are protecting a:
- Sound
- Color
- Scent
- Motion
- Shape
- Texture
- Other nontraditional feature
2. Determine What It Identifies
Identify the specific goods or services associated with the mark.
The mark must function as a source identifier for those goods or services.
3. Search Existing Marks
Before filing, search the USPTO database for potentially conflicting marks.
You should look beyond exact matches and consider similar marks, related goods or services, and the overall commercial impression.
4. Review Functionality
Determine whether the feature provides a practical benefit or is essential to the product or service.
If it is functional, trademark protection may not be available.
5. Prepare the Description
Nontraditional marks often require a detailed description explaining exactly what is being claimed.
For a sound mark, this can involve describing the sound and providing the required audio file.
6. Prepare the Specimen
Your specimen must show the mark being used in commerce with the relevant goods or services when required.
Sound, motion, and color marks can use electronically submitted specimens. Scent and flavor marks are different because the USPTO requires physical specimens to be mailed in certain filings.
7. File the Application
Submit the application with the required information and filing fee.
If you need assistance with the process, you can file a US trademark online with professional help.
Do You Need a Special Application for a Sound Trademark?
You file a trademark application with the USPTO, but the application requirements are different because the mark is nonvisual.
For a sound mark, the application should properly describe the sound and include the required audio representation.
The USPTO evaluates whether the sound functions as a trademark and whether the application materials adequately identify the claimed mark.
How Long Does a Nontraditional Trademark Last?
A federally registered trademark can continue indefinitely as long as the owner continues to use the mark as required and files the necessary maintenance documents.
A nontraditional mark is not exempt from these requirements simply because it is a sound, scent, or color.
You can learn more about ongoing protection in our guide to how long does a trademark last?.
Sound, Smell, and Color: Quick Comparison
| Type of mark | Can it be trademarked? | Main challenge |
| Sound | Yes | Must identify the source |
| Color | Yes, in limited circumstances | Acquired distinctiveness and functionality |
| Scent | Yes, in limited circumstances | Functionality and acquired distinctiveness |
| Motion | Yes | Must clearly demonstrate the claimed movement |
| Product shape | Yes, in limited circumstances | Functionality and distinctiveness |
| Texture | Yes, in limited circumstances | Functionality and source identification |
The rules differ significantly by mark type, so businesses should not assume that the requirements for a sound mark are the same as those for a scent or color mark.
Trademark Protection for Nontraditional Brands
Nontraditional trademarks can give businesses another way to protect distinctive branding.
A memorable sound can reinforce a company’s identity. A distinctive color can make packaging instantly recognizable. A unique scent can create a strong association with a product that consumers do not normally expect to smell that way.
But these forms of protection require careful planning.
If your business is considering a sound, color, scent, motion, or other nontraditional mark, evaluate whether the feature actually functions as a source identifier and whether functionality or distinctiveness creates a barrier.
Frequently Asked Questions
Can you trademark a sound?
Yes. A sound can be registered when it identifies and distinguishes the source of goods or services. Distinctive sounds may qualify more easily, while commonplace sounds may require evidence of acquired distinctiveness.
What are some sound trademark examples?
Examples include NBC’s chimes, Netflix’s “ta-dum” sound, ESPN’s distinctive audio mark, and AOL’s “You’ve Got Mail” sound. These sounds have been associated with particular sources and have received federal trademark protection.
Can you trademark a smell?
Yes, but scent trademarks are rare and difficult to obtain. The scent must function as a source identifier and cannot be functional. The USPTO states that scent marks require substantial evidence of trademark significance.
Can you trademark the smell of a perfume?
Generally, no. The smell of perfume is an expected and functional characteristic of the product, so it generally cannot function as a trademark for the perfume itself.
Can you trademark a color?
Yes, in certain circumstances. A color can function as a trademark when consumers associate it with a particular source, but product-color marks generally require acquired distinctiveness and cannot be functional.
Can you trademark a sound without registering it?
You can use a sound as a claimed trademark without federal registration, but federal registration can provide important additional legal benefits. Registration is not automatic simply because you use the sound commercially.
How do you prove a sound is a trademark?
You can provide evidence showing that consumers associate the sound with your goods or services. Depending on the circumstances, evidence may include advertising, length of use, consumer recognition, and other marketplace evidence.
Can a jingle be trademarked?
Yes. A distinctive jingle can potentially function as a sound trademark when consumers recognize it as identifying the source of particular goods or services. The USPTO recognizes musical sequences and wording accompanied by music as possible sound marks.
Can a logo sound be trademarked?
A sound itself can be trademarked if it functions as a source identifier. However, a visual logo and an audio mark are separate forms of branding and may require separate applications if you want protection for both.
Can you trademark a song?
A complete song is generally not treated as a trademark simply because it is copyrighted. A portion of music or a jingle may potentially function as a sound trademark when it identifies the source of goods or services. Copyright and trademark protect different interests.
How do sound trademarks differ from copyrights?
Copyright generally protects original creative works such as music, while trademark law protects source identifiers. A sound can potentially receive both types of protection when it meets the separate requirements of each law.
For more information about copyright duration, see how long does a copyright protection last.
Final Thoughts
So, can you trademark a sound? Yes. Sounds, colors, scents, motion, shapes, and other unusual brand elements can potentially receive trademark protection when they function as source identifiers and meet the applicable legal requirements.
Sound marks can be relatively distinctive, while color and scent marks often face additional challenges involving acquired distinctiveness and functionality. A scent that is simply an ordinary feature of a product, such as the smell of perfume, generally cannot be protected as a trademark.
Before filing, search existing trademarks, determine exactly what you want to protect, review functionality, and prepare the description and specimen required for your particular mark.
If you are ready to learn how to register a Trademark, getting the application details right from the beginning can help avoid unnecessary problems during examinations.
You can also review [registered trademark symbol on Mac] if you need to understand how to type and use the federal registration symbol correctly.
