In Re General Electric Broadcasting Company, Inc.
199 U.S.P.Q. 560 (TTAB, 1978)
Applicant filed an application to register a mark consisting of the sound made by a Ship’s Bell Clock as a service mark for Radio Broadcasting Services. The mark was described as “a series of bells tolled during four, hour sequences, beginning with one ring at approximately a first half hour and increasing in number by one ring at approximately each half hour thereafter”.
Along with the application, the Applicant filed a tape recording. The Examiner refused the registration on the ground that sequential sounds sought to be registered do not and cannot constitute a mark serving to identify Applicant’s services. The Examiner observed that the Applicant is doing no more than telling its listeners the time by broadcasting the traditional maritime sequence.
The Applicant appealed against the said refusal. before Trade Mark Trial and Appeal Board, Patent and Trademark Office. The Board observed the following on registrability of sound marks:
- The mark need not be confined to a graphic form.
- Sound marks can be registered when they are used in such a manner so as to create in hearer’s mind an association of sound with a service.
- However, a distinction must be made between unique, different or distinctive sounds and those that resemble or imitate “commonplace” sounds or those to which listeners have been exposed under different circumstances.
- This does not mean that sounds that fall within the latter group, when applied outside the common environment, cannot function as marks for the services in connection with which they are used.
- However, the arbitrary, unique or distinctive marks are registrable as such on the Principle Register without supportive evidence, those that fall within the second category must be supported by evidence to show that purchasers and listeners do recognise and associate the sound with services offered and/or rendered exclusively with a single, albeit anonymous, source.
The Board applied the said tests in the present case and held
- The fact that Applicant’s sound mark is a play on the traditional ship’s bell clock sounds does not mean that in the environment of radio broadcasting services; it is incapable of functioning as a mark to identify such services.
- This is manifestly a question of fact, and in view of the experience of the average person with ship’s bells, whether as a member of the armed forces or otherwise, evidence in such a situation is necessary to establish that the ship’s bell sounds have become distinctive of Applicant’s services and do, in fact, identify and distinguish Applicant’s broadcasting services to those exposed to such services, That is, the sounds ring a bell for the listener.
In the present case, there was no evidence to satisfy the above test and hence the refusal of registration was affirmed.
Thus, key takeaways from the said decision can be:
- In United States, there is no requirement of graphical representation in case of Sound Marks
- Sound Marks are registrable provided they distinguish goods/services of one from another.
- Recognition of 3 (three) categories of sounds marks: a) unique, different or distinctive; b) “commonplace” sounds; and c) “commonplace” sounds to which listeners have been exposed under different circumstances.
- In case of first category no evidence of distinctiveness is required. In case of other two categories evidence of distinctiveness through use is required.