Sound marks for alarms refused registration

In In re Vertex Group LLC (Cases 76601697 and 78940163, February 13 2009), in a precedential opinion, the Trademark Trial and Appeal Board (TTAB) has upheld a decision of the US Patent and Trademark Office in which the latter had refused to register two sound marks. 

Vertex Group LLC sought to register sound marks described as a sound of "descending frequency sound pulse" (from 2.3 kilohertz (kHz) to approximately 1.5 kHz) occurring at intervals of four to five per second, with the sound pulse alternating with silence. The applications covered goods in Class 9 of the Nice Classification - namely, “personal security alarm in the nature of a child’s bracelet to deter and prevent child abductions” and “personal security alarms.”  

The TTAB refused registration based on functionality, holding that:

• the proposed sound was a feature of the goods that served a utilitarian purpose; and
• the sound did not function as a trademark to identify and distinguish the source of the goods. 

In particular, the TTAB held that the marks were functional despite Vertex's evidence to support its claim that the marks were not functional, which included: 

• website advertising that featured a 'click to hear' feature allowing consumers to listen to "the unique sound" of the product;
• press releases and media coverage touting the "trademarked sound" of the product; and
• radio public service announcements which played the sound of the product. 

In arriving at its determination that the sound marks were functional, the TTAB held that:
 Vertex did not seek registration of the sound marks under Section 2(f) of the Lanham Act. However, the TTAB noted that even if this rule were not in effect, Vertex's marks would be functional and not entitled to registration.