Key Takeaway: Non-traditional trademarks like sound marks can provide valuable protection for distinctive sounds that function as source identifiers, particularly where other forms of intellectual property protection may be unavailable.
Sound trademarks are receiving renewed attention after Taylor Swift and Matthew McConaughey made headlines for filing for protection of sound recordings of their voices. Swift has sought protection for her voice saying “Hey, it’s Taylor Swift,” while McConaughey has successfully registered the iconic phrase “Alright Alright Alright” in his signature Texas drawl.
These efforts are widely understood as part of a broader strategy by celebrities to guard against unauthorized use of their voices in AI-generated content. In view of this trend, all of us, celebrities or not, stand to benefit from a refresher on what sound trademarks are.
What is a Sound Mark?
A sound mark identifies a product or a service through audio rather than visual means. Like traditional trademarks, a sound mark must function as a source identifier by creating in the listener’s mind an association of the sound with the holder’s goods or services.
While virtually any sound can comprise a sound mark, it must bring to mind the holder’s brand. Think of the NBC chimes (a sequence of the notes G, E, and C), the childlike giggle of the Pillsbury Dough Boy, or the MGM lion’s roar. These sounds all have one shared characteristic: they make the audience think of the holder’s associated good or service. That source identifying function is what elevates any basic sound to a sound mark.
Distinctiveness is Key
As with any trademark, a sound mark needs to be distinctive to be protectable. A sound mark must not be typical or functional in the context of the relevant goods or services, nor should it directly affect the cost or quality of those goods or services. Trademark law does not permit the registration of sounds that competitors must use for their products or services to compete effectively. For example, the sound emitted by a smoke detector, the beeping of an alarm clock, or the sound emitted by machines as part of their normal operations are all functional sounds that would not qualify for trademark protection.
How long does a Sound Mark Have to Be?
Like traditional trademarks, there is no length requirement for a sound mark. For example, McDonald’s 5-note “ba da ba ba baa” jingle and Netflix’s 3-second “tu-dum” are each registered sound marks and meet the distinctiveness threshold for protection despite their relatively short length. Longer sequences can also qualify. For example, McConaughey recently registered a recording of his voice saying, “Just keep Livin’, right? I mean, what else are we gonna do?”.
Use Matters
Ultimately, a sound mark’s protectability turns not only on the sound itself, but also on how it is used. The sound must be presented in a manner that reinforces its role as a source identifier so that consumers, upon hearing it, associate it with a particular source.
Applicants should therefore be intentional in how they deploy sound marks, ensuring that the sound consistently accompanies their goods or services in a way that builds and reinforces consumer recognition.
Final Thoughts
Sound marks can be a valuable tool in the brand protection toolbox, particularly for sounds that may not qualify for other types of intellectual property protection, such as copyrights. As branding continues to evolve, and especially in an era of voice technology and AI-generated media, sound marks offer a meaningful way to protect source identifying sounds—whether you’re a celebrity or not.
At Knobbe Martens, we advise clients across all industries on securing and leveraging rights across the full spectrum of intellectual property, including non-traditional trademarks such as sound marks.
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