Duracell Display Sound Can Be Registered as a Trademark

The Trademark Trial and Appeal Board (TTAB) has found that Duracell can register a sensory (sound) mark for “batteries” in International Class 9.

As Duracell’s trademark application describes it,

The mark is a sound. The mark consists of three musical notes. The first note is a quarter note C4, the second is a quarter note G3, and the third is a half note G4.

The examining attorney initially refused registration of the proposed sound mark under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, on the ground that Duracell’s sound was “mere advertising” for, rather than “displays associated with,” the identified goods (i.e., batteries).

Duracell submitted specimens that included “audio messaging” played in stores where Duracell products are sold. The sound was the three-note “slamtone” used in Duracell advertising since the 1970s, usually near the end of each ad.

Duracell pays for the “audio messaging” to be played in stores where it “sells a large volume of batteries,” including grocery stores and CVS and Rite Aid drug stores.

Duracell noted that the sound aired over 100 million times, resulting in over one billion customer impressions. The sound can be heard in the aisles where batteries are stocked and throughout the stores.

The TTAB noted that the Federal Circuit held in the case of In re Siny Corp. that

A mark is deemed in use in commerce on goods when, among other things, ‘it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto.’

In this case, the sound mark is not on the goods, their containers, tags, or labels affixed thereto. Thus, the TTAB needed to determine whether the sounds were “displays associated” with the batteries for sale.

“Mere advertising” isn’t enough to qualify as a display.

The TTAB found that Duracell’s in-store audio messaging was more than mere advertising:

Specifically, unlike most television, radio, newspaper, Internet, billboard, or other types of advertising that consumers might encounter at home, in their cars, or other non-retail locations, Applicant’s advertising/“audio messaging” is transmitted repeatedly (often multiple times per hour) in retail locations where the identified goods are displayed and available for purchase. It can be heard in the section of the store where the goods are located.

The TTAB had held in previous cases that to fall within Section 45’s definition of “displays associated with the goods” (as opposed to “sounds” or “recordings” associated with the goods), the displays must be

essentially point-of-sale material such as banners, shelftalkers, window displays, menus, or similar devices which are designed to catch the attention of purchasers and prospective purchasers as an inducement to consummate a sale and which prominently display the mark in question and associate it or relate it to the goods in such a way that an association of the two is inevitable even though the goods may not be placed in close proximity to the display or, in fact, even though the goods may not physically exist at the time a purchaser views the display.

Other examples of sound trademarks are:

• the Harlem Globetrotter’s court-entrance song, “Sweet Georgia Brown”
• the Mockingjay whistle from The Hunger Games
• Homer Simpson’s “D’oh!”
• the Law & Order double chime
• Star Wars lightsaber sounds
• the MGM lion’s roar
• Tarzan’s yell