Lex Indicium

Part of the fun of trademark practice is its unique overlap with literature, art, science, culture, and psychology. Words and symbols are used as trademarks to identify sources of commercial goods; convey messages to consumers that go beyond their pure literal meaning; and, through a curious alchemy of psychology, repetition, aesthetic attraction, and cultural filtering, somehow evoke brand loyalty, leading consumers to open their wallets. Subtle, but powerful messaging animates buyer behavior.

However, if psychology and/or science were the sole driver of branding campaigns, a lot more marketers would stop trying to find the next catchy phrase or word—”Covfefe,” “Google,” “Yelp“—and instead focus on what subliminal force is most likely to create the strongest bond between the consumer and the manufacturer. Despite smell and sound being the more profound links to human feelings and motivations, marketers rarely do more than play at the edges of these forces—by using a jingle occasionally, for example.

Psychoacoustics and the Associations Created by Sound

We’ve all experienced the sensation of hearing a piece of music, or even a familiar sound, and having it transport us back in time to some experience from our youth. When it happens, the level to which one can recall details and emotions around the experience can be astonishing. For me, it’s the first several measures of Peter Frampton’s “Do You Feel Like We Do.“ I’m immediately in the Pontiac Silverdome, it’s probably 1977, and I’m utterly mesmerized by the swaying and gesticulation of the (mostly inebriated) crowd in perfect sync with the performer on the stage. It’s hot, but we all feel cool and joyful.

There is a lot of hard science behind the visceral association of sound with events and emotions. The process is hard-wired into the brain stem and pre-frontal cortex, and is part of the primordial human survival instinct. Amplifon, an Irish hearing-care specialist, recently catalogued the ways that sound impacts the brain and reasoning. Among the points detailed was that sounds can impact our “evaluative conditioning.” This occurs when “an emotion is elicited by sound because we have heard it in a certain setting, leading to an association between sound and setting.” There are numerous articles on the topic, including this blog post, which includes a link to a unique test that allows individuals to measure how sounds impact their emotional state.

Furthermore, sound, and music in particular, can be responsible for the release of dopamine into the brain, giving intense pleasure to the listener. What brand holder wouldn’t want to take advantage of that process to create a deep association between consumer and product?

Psychology of Smell

The sense of smell can be an even more powerful motivator than sound. When an odor enters the nose, it travels along the olfactory bulb, which processes the smell and then passes its information through the brain’s limbic system. The limbic system controls memory, mood, behavior, and emotion. (Who hasn’t smelled pencil shavings and remembered being in third grade?) Importantly, smell can influence decision making and customer choice. In an experiment published in the journal Chemosensory Perception, researchers used samples of scented body lotions to measure users’ associations with various scents, and found that “lotion fragrances that smelled pleasant and evoked stronger personal emotional memories” were preferred by study participants. This led Psychology Today to conclude that “fragrance is a prime driving force motivating consumers’ behavior.”

Scent and Sound Trademarks

Given the strong associational qualities of sound and smell, why don’t marketers leverage these stimuli to create powerful brands and influence buyer behavior? A few have, it turns out, though far fewer than one might think. The U.S. trademark database contains records for a few dozen active sound marks and just a handful of “smell” marks. The most “famous,” or perhaps merely the oldest, of the sound marks is NBC’s chimes. But more recently, tech companies like Netflix and Microsoft have registered various sounds as marks for software and related telecom services.

Scent marks are rarer than sound marks. The Patent and Trademark Office has allowed the registration of “cherry scent” to identify synthetic lubricants, and peppermint and grapefruit scents to identify office supplies. There is also the scent of plumeria, to identify sewing thread. Of course, one reason that scents may be more difficult to assert exclusive claims upon is that they cannot be “functional” as to the goods. Just like a traditional word mark, scent (or sound or any non-traditional mark) must be distinctive as applied to the goods. Therefore, a competitor could not generally claim a scent as applied to an item of food or beverage that bears that scent.

Even if scents may be functional as to certain goods, one would think that some—as applied to, for example, apparel—might be unique. The smell of the deep woods or a bonfire, for outdoor clothing? Citrus, for beachwear? A waxy crayon smell, for children’s bedding? These are just a few ideas…

In any event, below are a series of registered sound marks. As you listen to them, ask yourself whether they have any associational qualities that are powerful for you.

Owner: Twentieth Century Fox Film Corporation
Description of Goods/Services: Entertainment services in the nature of motion picture films

Owner: Harlem Globetrotters International , Inc.
Description of Goods/Services: Entertainment services in the nature of basketball exhibitions

Owner: Classic Media, LLC
Description of Goods/Services: Entertainment services, namely, a continuing drama show distributed over television, satellite, audio, and video media

Owner: Microsoft Corporation; computer software and communication services
Description of Goods/Services::

Owner: The Procter & Gamble Company
Description of Goods/Services: Antiperspirants

Owner: UnitedHealth Group Incorporation
Description of Goods/Services: Electronic processing of insurance claims

Owner: Netflix
Description of Goods/Services: Streaming audiovisual content via the internet

Owner: Allstate Insurance Company
Description of Goods/Services: Insurance services

Owner: AGS LLC
Description of Goods/Services: Gaming machines

Owner: Southwest Airlines Co
Description of Goods/Services: Air transportation of passengers

Owner: AT&T Intellectual Property II, LP
Description of Goods/Services: Telecommunication services