Trademark Protection for Jingles and Other Branded Sounds and Music

Introduction

Jingles – short songs or tunes – have been used in advertising for decades. Some of the most famous and most heavily-advertised jingles are almost universally known in their target markets. For example, the famous “break me off a piece of that Kit Kat bar” jingle or McDonald’s five-note “I’m lovin’ it” jingle are immediately recognizable. Indeed, many of these jingles have taken on a life of their own – entering into the public’s imagination. In one memorable episode of NBC’s The Office, Andy Bernard (portrayed by Ed Helms) forgets the ending of the Kit Kat jingle and spends the rest of the episode trying to recall how it ends (substituting humorous phrases including “Chrysler Car,” “football cream” and “fancy feast” for the words “Kit Kat bar”).

Jingles, sounds and music offer an important, cross-platform means of creating unified branding. Because jingles, sounds and music include an audio component, they can be used on radio, television and digital advertising platforms – in ways which simple wordmarks / logos cannot. Jingles with lyrics (such as the Kit Kat and McDonald’s jingles noted above) can also have the text of the jingle’s lyrics appear in newspaper, magazine and other print-advertisements. This lends a certain versatility to jingles which can be effective in promoting brand recognition.

While the most obvious way to protect jingles and other branded sounds / music is by seeking to register a copyright in such jingle, sound or music (which will be discussed in a separate blog article), this article focuses on the ability to use trademark law to protect jingles and other branded sounds / music indefinitely.

Using Trademarks to Protect Jingles, Branded Sounds and Music

Section 1202.15 of the Trademark Manual of Examining Procedure (“TMEP”) explains that:

“Sound marks function as source indicators when they ‘assume a definitive shape or arrangement’ and ‘create in the hearer’s mind an association of the sound’ with a good or service.

This means that sound marks – just like visual trademarks – may be easily registered when they are:

“arbitrary, unique or distinctive and can be used in a manner so as to attach to the mind of the listener and be awakened on later hearing in a way that would indicate for the listener that a particular product or service was coming from a particular, even if anonymous, source.”

Section 1202.15 (quoting In re Vertex Grp. LLC, 89 USPQ2d 1694, 1700 (TTAB 2009)).

Based on a quick “knock out” search of the Trademark Electronic Search System database, it appears that the oldest live trademark registration for a jingle is Reg. No. 0916522 which covers the three-note NBC jingle – dating back to 1971 and claiming use back to 1961.

Other examples of well-recognized jingles and other sound marks include:

Reg. No. 1395550 covering the sound of the MGM lion roaring;

Reg. No. 2000732 covering the musical accompaniment of the 20^th Century Fox “fanfare” (which music was composed by 9-time academy award winner and 43-time academy award nominee Alfred Newman);

Reg. No. 1872866 covering THX’s “Deep Note”;

Reg. No. 3307300 covering the “Toys R Us Kids” jingle;

Reg. No. 2155923 covering the theme music and lyrics to the LONE RANGER® radio, film and television series;

Reg. No. 1700895 covering the “Sweet Georgia Brown” melody used by the HARLEM GLOBETROTTERS®;

Reg. No. 2459405 covering the T-Mobile jingle;

Reg. No. 3034331 covering McDonald’s five-note “I’m lovin’ it” jingle;

Reg. No. 3736968 covering the gong-sound played at the end of TACO BELL® commercials;

Reg. No. 2315261 covering the five-note chime used by the Intel Corporation; and even

Reg. No. 2210506 covering the “Tarzan yell” first popularized by Johnny Weissmuller in his classic portrayal of the Tarzan character.

Importantly, Section 1202.15 makes it clear that there is a difference between “unique, different or distinctive sounds” and sounds which are more “commonplace.” Section 1202.15 further “fleshes out” this concept, explaining that “commonplace” sound marks:

“include goods that make the sound in their normal course of operation (e.g. , alarm clocks, appliances that include audible alarms or signals, telephones, and personal security alarms). “

This is not to say that “commonplace” sound marks are incapable of protection. Rather, Federal trademark registrations for “commonplace” sound marks can generally be secured so long as the applicant can show that the “commonplace” sound mark has acquired distinctiveness under Section 2(f) of the Lanham Act.

A good example of such a scenario is Reg. No. 2712396. This registration covers the sound created by the Federal Signal Corporation’s Q-SIREN® brand sirens. According to evidence submitted by the Federal Signal Corporation to the Trademark Office, customers associate the unique sound produced by Q-SIREN® brand sirens with the Federal Signal Corporation. Naturally, the noise emitted by a siren would fall under the category of “goods that make the sound in their normal course of operation” – which is what triggered an Office Action and required the Federal Signal Corporation to submit evidence of acquired distinctiveness in the first place.

Another good example comes from TIVO® brand digital video recorders. TiVo Brands LLC has self-evidently expended a great deal of time and expense in protecting the various sounds generated by TIVO® brand digital video recordings – registering numerous trademarks in the various sounds generated by TIVO® brand recorders; including Reg. Nos. 3398481, 3841500, 2996654, 3398480, 3401772, 3401771, 3398479, 3401774, and 3401773. This is a good lesson for others: any distinctive sound made by a product should be evaluated for potential trademark protection.

How to File Trademark Applications to Protect Jingles, Branded Sounds and Music

One final point worth noting is that trademark applicants wishing to protect jingles, branded sounds and music must provide a sufficiently detailed, written description of their trademark which clearly explains the sound(s) in question.

With respect to jingles / songs which include lyrics, sufficiently describing the lyrical portion is relatively easy: the applicant simply needs to include the text used in the trademark.

However, in addition to a description of any words sung in a jingle, an applicant must also describe the musical accompaniment used in the jingle. Generally, this includes providing both a textual description of the music as well as submitting sheet music – something the Trademark Office routinely requires in support of a sound mark application.

If you or your company have a jingle, branded sound or music which you would like to protect, call us today for a free consultation.