Lend me your Ear – Sound Marks in Branding

Today’s brands are multimedia, multisensory experiences. They aim to wrap the consumer in an environment that reinforces brand values and creates associations on every level, bringing them back again and again to companies they know and trust.

We’re familiar with the use of a trade mark to identify the source of goods and services so consumers can make accurate informed decisions about what to buy. However, until relatively recently, registered trade marks were purely visual affairs, stamped onto packaging or used in print advertising to build the link between product and brand.

As the world has grown increasingly multimedia, the power of sound to build emotional connections between consumers to brands has become evident. Studies frequently show that we unconsciously absorb more of what we hear than what we read – not always a welcome effect. For example, everyone has had the irritating experience of an “earworm”, where a snippet of an overheard tune rolls around our heads unbidden for days. (We happen to know that Intellectual Property Magazine’s Ben Wodecki has had Elton John’s “Bennie and the Jets” on continuous internal loop for over a decade.)

But what if that earworm was branded? The equity of an instantly recognisable – ideally catchy – sound that creates subconscious connections with a brand is immense. An aural identity can be used in myriad ways across TV, radio and internet media, so it’s not surprising that the first company to successfully register a sound mark was media giant NBC, in 1971. The NBC chimes had been around for a long time, first appearing in 1927 as a seven note tune, before being reduced to the three note version in around 1930. This longevity and the fact that the sound is a musical tune that can be represented graphically were key factors in its successful registration, because securing a sound mark is not easy.

Challenges to registering sound marks

As with a conventional trade mark, for a sound to be registrable it must be unique and distinctive. Just as generic terms cannot be registered as trade marks, so generic sounds are not permitted. Nor must the sound to be registered have a functional relationship to the product – an “authentic mouse squeak” was refused registration by the USPTO for a pet toy manufacturer on the basis that it served to attract the animals that naturally prey on mice – such as cats – to play with the toy and was therefore utilitarian.

Typically, if a sound has been created specifically for the brand, the applicant must demonstrate that it has acquired distinctiveness and an association with the brand in the minds of consumers – as NBC clearly could after more than 40 years of broadcasting the sound to the homes of America.

Another example of a sound mark tune that has acquired distinctiveness is this melody – specifically the section from 12-15 seconds. Mobile phone users of a certain age will describe that as the “Nokia tune”, though it was originally composed in 1902 by classical guitarist Francisco Tarrega. At the peak of its popularity it was estimated to sound out 1.8 billion times a day, creating a strong association that undeniably links the product to the brand.

Registering sound marks became slightly easier in some jurisdictions on the implementation of the EU Trade Mark directive 2015 which removed the stipulation that marks must be represented graphically (e.g. via a musical score or sound wave image). This meant audio files such as MP3 recordings could be used in applications. However, despite this, relatively few sound marks have been registered. Just 233 sounds marks are currently registered in the EU IPO database compared to 710799 more traditional word marks.

Making the intangible, tangible

Sound marks are particularly popular with providers of services that don’t have a physical aspect, such as banks and insurers. Direct Line created an early example of this with their car horn-inspired jingle, while CompareTheMarket made a meerkat famous and has registered the iconic “Simples”.  

British Airways also aimed to make its service synonymous with a sound when it registered four bars of Delibes “Flower Duet” and used an edited version to accompany an advertising campaign in 1989. Choosing a piece of classical music can make a sound mark registration easier as composer rights have expired, so there is no need to negotiate royalties.

Computer games are another area where sound marks have made an impact in something that is somewhat intangible, from the memorable 90s hit “Tetris” (EUTM 002289049), registered by Tetris Holdings, to more recent sensation “Angry Birds” (EUTM 011074705), belonging to Rovio.

Unusual sound marks

Some more unusual sounds have succeeded in registration and are finding new audiences. Iconic lighter manufacturer Zippo celebrated securing registration for its signature click in late 2018. USPTO Reg. No. 5527388 is officially described as “The sound mark consists of the sounds of a windproof lighter opening, igniting, and closing”. Zippo stated that the sound had: “infiltrated pop culture for over eight decades, appearing in over 2,000 movies, countless music videos.” This was the culmination of a process that started in 1999 and its ultimate success lay in the comprehensive proof of public recognition Zippo presented to the USPTO.

Now Zippo is getting a further lease of life as its sound is proving popular in the relatively new phenomenon of ASMR (Autonomous Sensory Meridian Response) recordings.

Sound marks – a growing phenomenon

There is no doubt that sound marks have the power to provoke responses and create connections, making them a valuable branding tool. As the world grows even more multimedia and the popularity of voice-activated virtual assistants such as Siri and Alexa continues to rise, the importance of sound branding will increase.  Brands will seek to seed their earworms into the public consciousness. While sound marks are still quite rare, we are likely to see – and hear – much more of them as the future unfolds.

For sound mark fans, the USPTO has a great site listing some of the most popular, including Homer Simpson’s famous exclamation, registered to Twentieth Century Fox.