Precedential No. 5: TTAB Affirms Failure-to-Function Refusal of Battery Charger "Chirp"

Two more applications to register "chirp" sounds as trademarks fell on deaf ears at the TTAB. The Board affirmed the PTO's refusals to register applied-for marks comprising "five short electronic chirps," one in slightly increasing pitch, and the other in slightly decreasing pitch, for battery chargers [listen here]. Examining Attorney Jason Paul Blair found that these two sounds were not, as Applicant claimed, inherently distinctive, and therefore they failed to function as a trademark. In re Powermat Inc., 105 USPQ2d 1789 (TTAB 2013) [precedential].

Evidentiary issues: the Board first addressed certain problems with Applicant Powermat's evidence. Powermat submitted a list of links to YouTube advertisements for its products, but the Board observed that "providing hyperlinks to Internet materials is insufficient to make such materials of record." Powermat also submitted printouts of YouTube.com pages where its commercials are posted, apparently expecting the Examining Attorney to view the videos. This was not the proper way to submit audiovisual files; applicant should have submitted a CD, DVD, or videotape of the commercials, or it could have sent the audiovisual files as e-mail attachments.

Failure to Function: In some instances, a sound may function as a mark. Sounds emitted in the course of a product's ordinary function, however, cannot be inherently distinctive. In re Vertex Group LLC, 89 USPQ2d 1694 (TTAB 2009) [TTABlogged here]; Nextel Communications v. Motorola, Inc., 91 USPQ2d 1393 (TTAB 2009) [TTABlogged here].

Powermat's battery chargers emit the ascending tones when an electronic device is placed on the charger, and the descending tones when the device is removed. Powermat did not dispute that its battery chargers emit the sounds in their ordinary course of operation. Therefore its applied-for sound marks are not inherently distinctive.

Powermat's advertising evidence and its (unsupported) argument that the sounds were developed by a professional composer and market-tested, could not change the result here. Even if Powermat's evidence of promotion of its sounds were considered the equivalent of "look-for" advertising, that would help Powermat only under a Section 2(f) claim, but Powermat did not claim acquired distinctiveness. It claimed only inherent distinctiveness, a claim destined to be silenced by the cited Board precedent.

And so the Board affirmed the refusals to register.

Read comments and post your comment here.

TTABlog comment: Nothing new here. Why precedential?

Text Copyright John L. Welch 2013.