Sound and scent marks add a sensory dimension to trademark law. These non-traditional marks must function as source identifiers, requiring detailed descriptions and proof of distinctiveness. Challenges include accurately representing these marks and navigating functionality issues.

Notable cases have shaped the landscape for sound and scent marks. From the NBC chimes to the plumeria-scented thread, these decisions have expanded protectable subject matter and refined analysis for non-traditional marks, emphasizing non-functionality and distinctiveness.

Sound Marks and Scent Marks in Trademark Law

Requirements for sound and scent marks

• Sound marks must function as source identifiers requiring detailed written descriptions and audio file submissions (NBC chimes)
• Scent marks need non-functionality and distinctiveness with detailed written descriptions but no drawing requirement (plumeria scent for sewing thread)
• Both types demand commercial use, avoid genericness or mere descriptiveness, and prevent confusion with existing marks
• Sound marks often utilize musical notes or onomatopoeias in descriptions while scent marks rely on analogies to familiar odors

Distinctiveness vs functionality issues

• Inherently distinctive sounds or scents bypass acquired distinctiveness requirement (MGM lion roar)
• Secondary meaning proves acquired distinctiveness through consumer association
• Utilitarian functionality doctrine bars protection of essential product features
• Aesthetic functionality considers competitive need for appealing features
• Consumer perception challenges arise due to non-traditional nature of marks
• Scent depletion theory argues limited pleasant scents restrict monopolization

Challenges in mark representation

• Accurate sound and scent descriptions pose difficulties due to sensory subjectivity
• Enforcement struggles with proving confusion and detecting marketplace infringement
• International protection varies with some countries requiring graphical representation
• Evidence preservation for litigation necessitates special techniques for sensory marks
• Expert testimony often needed to explain nuances of sound and scent perception

Notable sound and scent mark cases

• NBC chimes registration showcased distinctiveness of simple sound sequences
• MGM lion roar protection demonstrated iconic status of animal sounds in branding
• Harley-Davidson engine sound application highlighted challenges in protecting functional sounds
• In re Clarke established registrability of scent marks (plumeria scent for sewing thread)
• Verizon Wireless store scent case explored use of ambient scents as trademarks
• Key decisions emphasize non-functionality importance and distinctiveness evidence standards
• Cases expanded protectable subject matter and refined non-traditional mark analysis