A trademark does not always have to be a business name or logo. In the United States, certain sounds, smells, and colors can also qualify for trademark protection if they identify the source of particular goods or services and meet the legal requirements.
If you are wondering if you can Trademark a sound, the answer is yes. A distinctive sound, such as a recognizable musical jingle or a short audio sequence, may qualify for federal trademark registration. Smells and colors can also qualify in specific circumstances, but they face additional requirements.
These types of marks are known as nontraditional trademarks because they do not always use the usual words or logos to identify a brand.
This guide explains how sound, smell, and color trademarks work, provides real-world examples, and covers what you need to know before applying for registration.
What Is a Nontraditional Trademark?
A nontraditional trademark is a mark that identifies the source of goods or services through something other than a standard word, phrase, or logo.
It may include:
- A sound or musical sequence
- A particular color used on a product or its packaging
- A distinctive smell associated with a product
- A motion or movement
- Certain product shapes or packaging designs
The key requirement is that the feature must help consumers recognize the source of the goods or services. A feature that simply makes a product work or serves a common purpose may not qualify.
The USPTO recognizes sound and scent marks, along with color marks, but each type has specific requirements. Sound and scent marks also need an appropriate written description and other supporting information for the application.
Can You Trademark a Sound?
Yes, you can trademark a sound if it identifies and distinguishes the source of goods or services.
For example, a company might use a distinctive musical sequence at the beginning of its advertisements, films, or audio content. If consumers recognize that sound as identifying the company or its services, it may qualify for trademark protection.
However, not every sound can be trademarked. The sound must function as a brand identifier rather than simply being a normal feature of the product.
For example, a short musical jingle used consistently to identify a brand may qualify. A standard alarm sound that many products use may face more difficulty because consumers may see it as a functional feature rather than a brand identifier.
The USPTO provides a list of registered and pending sound marks, including musical sequences, chimes, and other recognizable audio marks. You can review these examples on the USPTO sound mark examples page.
Sound Trademark Examples
Looking at sound trademark examples can help you understand how sound marks work in practice.
1. NBC chimes
NBC’s recognizable chimes are a well-known example of a sound mark. The sound is associated with the broadcasting brand and can help listeners identify its source.
2. MGM’s lion roar
The roar used in MGM’s film opening is another example of a sound associated with a particular entertainment brand.
3. Intel’s musical sequence
Intel’s short musical sequence is used to identify the brand in advertising and other promotional material.
4. THX sound
The THX audio sequence is a recognizable sound associated with its entertainment and audio-related services.
These examples show that sound can function like a name or logo when it creates a strong association with a particular source. You can explore more examples through the USPTO’s official sound mark database.
What Are the Requirements for Registering a Sound Mark?
If you want to register a sound mark, you need to show that the sound identifies your goods or services.
The main requirements include the following.
The sound must identify your brand
The sound should help consumers recognize the source of your goods or services. A sound that merely performs a practical function may not qualify without sufficient evidence of acquired distinctiveness.
The sound must be clearly described
Your application should include a clear written description of the sound.
For example, the description might explain that the mark consists of a sequence of musical notes or a particular combination of tones.
You must submit an audio file
A sound mark application generally requires an audio reproduction of the sound so the USPTO can understand what you are seeking to register.
The application must meet trademark requirements
The mark must satisfy the applicable legal requirements, including use in commerce or a qualifying intent to use, depending on the filing basis.
If you are considering registration, it is helpful to review existing marks first to see whether similar sounds are already registered for related goods or services.
Can You Trademark a Smell?
Yes, a smell can qualify for trademark protection in limited circumstances.
A scent mark must identify the source of goods or services rather than simply describe a product feature or serve a functional purpose.
For example, if a product has a distinctive scent that consumers associate with a particular company, that scent may qualify if the legal requirements are met.
However, scent marks are difficult to register because consumers often see smells as product features rather than brand identifiers.
Example: Play-Doh scent
The Play-Doh scent is a well-known example of a registered scent mark. The scent was described as a sweet, slightly musky, vanilla fragrance with slight overtones of cherry combined with the smell of a salted, wheat-based dough.
The registration demonstrates that a smell can qualify for trademark protection when it meets the relevant requirements. It does not mean that every distinctive product scent can be registered.
The USPTO’s trademark examination guidance explains that scents may be registrable when they are nonfunctional and the applicant can establish that the scent functions as a mark. The evidence needed to show acquired distinctiveness can be substantial.
What Smells Cannot Be Trademarked?
A smell generally cannot be registered if it serves a functional purpose or is simply an expected feature of the product.
For example:
- The ordinary scent of perfume
- The expected fragrance of an air freshener
- A smell that serves a practical purpose
- A scent consumers see only as a normal product attribute
These examples may face problems because the scent does not necessarily identify a particular source.
A scent mark must do more than make a product smell pleasant. It must help consumers recognize the business behind the product.
Can You Trademark a Color?
Yes, a color can qualify for trademark protection in the United States, but the requirements can be strict.
A color mark may involve a particular color used on a product, packaging, or other materials in a way that consumers recognize as identifying a specific source.
For example, consumers may associate a particular color used in a specific commercial context with one brand.
However, simply choosing a color for your logo or website does not automatically give you exclusive rights to that color.
Color must identify the source
The color must function as a trademark rather than merely decorate the product.
In many cases, an applicant must show that consumers have come to recognize the color as identifying the source of the goods or services. This is known as acquired distinctiveness or secondary meaning.
The color must not be functional
A color may be difficult or impossible to register if it serves a functional purpose or gives the product a competitive advantage unrelated to brand identification.
For example, a color used for a practical safety purpose may face different legal issues from a color used mainly to identify a brand.
The application must describe the color use
A color trademark application must identify the color or colors claimed and explain where and how they appear in connection with the goods or services.
The scope of protection depends on the specific mark and its commercial use.
Examples of Color Trademarks
Color marks are not simply claims to own a color everywhere. They relate to how the color is used with specific goods or services.
Examples discussed in U.S. trademark law include:
- Owens-Corning’s pink insulation: The company obtained protection for pink as used with its fiberglass insulation after showing acquired distinctiveness.
- Qualitex’s green-gold dry-cleaning press pads: The U.S. Supreme Court recognized that a color can function as a trademark when it identifies a source and meets the legal requirements.
These examples show that a color can qualify for protection in a specific commercial context. They do not give a company unrestricted ownership of that color for every product or industry.
Sound vs. Smell vs. Color Trademarks
Each type of nontraditional trademark has different requirements and challenges.
| Mark type | Example | Main challenge |
| Sound mark | Musical jingle or distinctive chime | Showing that the sound identifies the brand |
| Scent mark | Distinctive product scent | Proving that the scent functions as a brand identifier and is nonfunctional |
| Color mark | A specific color used on a product | Showing acquired distinctiveness and nonfunctionality |
Sound marks may be easier for consumers to recognize when the sound is distinctive and consistently used. Scent marks often face a higher practical hurdle because consumers may not expect a smell to identify the source of a product. Color marks also face strict requirements because consumers often see color as decoration.
The right approach depends on the feature, the product or service, and the evidence available.
How to Register a Sound, Smell, or Color Trademark
The process is similar to other federal trademark applications, but nontraditional marks may require additional information.
Step 1: Identify the mark
Decide whether you want to protect a sound, scent, color, or another nontraditional feature.
Step 2: Identify the goods or services
Explain which goods or services the mark identifies. Trademark rights are tied to the goods or services covered by the application.
Step 3: Search for similar marks
Search the USPTO database for existing marks that may conflict with your proposed mark. For sound marks, review existing sound registrations. For scent and color marks, consider how the feature is used in related markets.
Step 4: Prepare the required description and evidence
The type of mark determines what you need to submit. A sound mark generally requires an audio file and a written description. A color mark requires the appropriate drawing and a statement describing the colors and where they appear. A scent mark needs a clear written description and must meet the applicable filing requirements.
Step 5: File the application
Submit your application through the USPTO’s trademark filing system and pay the required fee.
Step 6: Respond to USPTO questions
The examining attorney may ask for clarification or issue an Office Action if the application does not meet the requirements.
Step 7: Maintain the registration
If your mark is registered, you must continue using it as required and submit the necessary maintenance filings.
For a broader overview, read our guide on how to register a trademark in the USA. The exact requirements for a nontraditional mark may be more complex than those for a standard word mark.
How Much Does It Cost to Trademark a Sound, Smell, or Color?
The cost depends on the application, the number of classes, and whether you use professional help.
The USPTO’s base application fee is currently $350 per class for a qualifying application. Additional fees may apply depending on the application and how it is prepared.
You may also need to pay for legal advice, evidence gathering, descriptions, and other preparation work. Nontraditional marks can require more time and supporting evidence than a standard name or logo.
Before filing, review the expected expenses and the evidence you will need. Our guide to trademark registration cost explains common costs involved in federal trademark applications.
Choose Trademark Ignition for Trademark Guidance
Protecting a brand involves more than selecting a name or logo. If your business relies on a distinctive sound, scent, or color, you need to understand whether that feature can identify the source of your goods or services and whether it meets the USPTO’s requirements.
Trademark Ignition can help business owners understand the trademark registration process, identify potential issues, and explore the steps involved in protecting their brands.
Before filing, it is worth reviewing similar marks and getting guidance on the type of protection that may fit your business. You can also compare the best trademark registration services in USA to learn what support may be available.
What Happens If Someone Uses Your Trademark?
If another business uses a mark that is likely to confuse consumers about the source of goods or services, the trademark owner may have grounds for an infringement claim.
However, using a similar color or sound does not automatically mean infringement. The facts, the scope of the trademark rights, and the likelihood of confusion matter.
Learn more about what trademark infringement is and the legal remedies that may apply. You can also read about trademark infringement penalties to understand potential consequences in cases where infringement is established.
If you are deciding which form of intellectual property protection applies to your business, our guide to trademark vs copyright vs patent explains the main differences.
For planning purposes, you may also want to learn how long trademark registration takes so you have a realistic idea of the process.
FAQs
Can a trademark be a smell mark?
Yes. A smell can qualify as a trademark in limited circumstances if it identifies the source of goods or services, is nonfunctional, and meets the applicable registration requirements. The applicant may need substantial evidence that consumers recognize the scent as a brand identifier.
Can you trademark a sound?
Yes. A distinctive sound, such as a musical jingle or a sequence of chimes, can qualify for trademark protection if consumers recognize it as identifying a particular source. A sound mark application generally requires an audio reproduction and a written description.
What words can you not trademark?
You generally cannot register words that are generic for the goods or services, and merely descriptive terms may be refused unless they meet the applicable requirements. Other possible grounds for refusal include a likelihood of confusion with an existing mark, deceptive wording, and certain protected names or symbols. Whether a particular word qualifies depends on how it is used and the goods or services involved.
Final Thoughts
Sound, smell, and color can all qualify for trademark protection in the United States, but each has specific requirements.
A distinctive sound may be registered when it identifies the source of goods or services. A scent may qualify when it is nonfunctional and consumers recognize it as a brand identifier. A color may also qualify when it identifies a source in a specific commercial context and meets the applicable requirements.
If you are considering a nontraditional trademark, start by reviewing existing marks, identifying the goods or services you want to protect, and gathering evidence that the feature functions as a brand identifier. The right preparation can help you understand whether registration is realistic before you invest in the application process.
