Trademark Registration

Can You Trademark A Sound?

As part of our “Can You Trademark” series, we will look at a wide range of topics that entrepreneurs and businesses may be interested in obtaining a federal trademark registration for. This series is merely designed as a broad overview of if it is possible to trademark the topic for the blog. To suggest our next topic, tweet @nextrendlegal, or post to our Facebook wall with a topic you would like to know if it is possible to trademark!

In short, yes you can trademark a sound.

The Lanham Act, states that a trademark is “any word, name, symbol, or device, or any combination thereof, used in commerce to distinguish his or her goods, from those manufactured by others to indicate the source of the goods.” Thus, federal trademark law does not specifically prohibit a sound from obtaining federal trademark registration, rather, it likely falls under the term “device.”

However, sound trademarks must meet extremely strict requirements. While there are not many sound mark registrations with the USPTO, nor many cases litigating infringement of sound marks, In re General Electric Broadcasting Co. gave one of the initial rulings on the strict requirements, stating a sound must be “so inherently different or distinctive that it attaches to the subliminal mind of the listener, to be awakened when heard, and to be associated with the source…” Further, the Trademark Trial and Appeal Board (TTAB) has stated there is an alternative spectrum of distinctiveness when dealing with sounds compared to traditional word marks. The spectrum for sounds is the distinction between “unique, different, or distinctive” and sounds that are “commonplace.” While these are really the only guidelines to be followed when analyzing the strength of a sound mark, it can be summarized as follows, if […]

Can You Trademark A Hashtag?

As part of our “Can You Trademark” series, we will look at a wide range of topics that entrepreneurs and businesses may be interested in obtaining a federal trademark registration for. This series is merely designed as a broad overview of if it is possible to trademark the topic for the blog. To suggest our next topic, tweet @nextrendlegal, or post to our Facebook wall with a topic you would like to know if it is possible to trademark!

With recent news regarding reality star Kris Jenner seeking a federal trademark registration for #ProudMama, we wanted to kick start our “Can You Trademark” series with a look at whether you can trademark a hashtag (#).

Hashtags are generally used in social media as a system to tag the topic of a social media post. This practice is mostly associated with an individual’s Twitter account, in order to quickly communicate the topic of any given “Tweet.” In order to gain federal trademark protection, any word, symbol, phrase, or design must be used in commerce and be able to identify a single source of the goods or services used in connection with the mark. Because a hashtag’s main purpose is to facilitate categorization of topics and searching conducted through social media, a hashtag on its own does not function as a source identifier. However, if a hashtag functions as an identifier of the source of an applicant’s goods, then that hashtag can be registered as a federal trademark, as long as the mark as a whole is not considered a generic trademark  or a merely descriptive trademark.

When thinking about trademark protection of a hashtag, simply using the “#” to reference a marketing campaign or index a message placed on social media, will not work to […]

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