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Can sounds be trademarked?

Trademarking a sound is a relatively new phenomenon. The National Broadcasting Company (NBC) successfully registered the first sound in 1978. However, over the years, it has been proven to be somewhat challenging for other companies to trademark sounds. A prospective applicant must follow stringent guidelines to do so.

The Lanham Act allows someone to register a trademark to protect symbols, words, devices or names. Under the Lanham Act, a sound has to be so distinctive or unique that it resonates with a listener on a subliminal level. The law describes how a sound must have the potential of awakening the listener when they hear it. It must also be associated with some discernable event or source.

The trademarking of sounds is generally a daunting process. For example, Harley-Davidson spent years in litigation attempting to get the sound of its V-Twin engine registered. Harley Davidson finally withdrew its application after they were unsuccessful for six years in trademarking the motor's sound. This example goes to show how inherently difficult, if not impossible, it can be to trademark a sound. Alternatively, many individuals seek to copyright sounds because they tend to be a more easily attainable option.

However, there are certain benefits that copyrights offer that trademarks do not. Trademarks have to be regularly defended and renewed for them to remain valid. Copyrights stay in effect up to 70 years after the author has died and do not require the owner to file infringement lawsuits to avoid it becoming inactive.

If you have a sound that you're considering getting a trademark for, then you might want to consider using copyright as a viable alternative. An experienced attorney can sit down with you and explain the differences between a trademark and copyright and what the process is for registering and defending each of them here in California, across the country, and abroad.

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