## Facts

- Vertex Group LLC applied to register a sound mark for a “personal security alarm for children” on the Principal Register.
- The proposed mark was the alarm’s operating sound: a quick descending-frequency pulse, repeated about four to five times per second, within roughly 1500–2300 Hz.
- The sound was emitted when the product functioned as intended (i.e., during alarm operation).
- Vertex owned a utility patent on the alarm device, though the patent did not claim the sound itself as an invention.
- Vertex’s marketing emphasized the alarm’s attention-getting noise and its protective purpose.
- A USPTO examining attorney refused registration, citing functionality and, alternatively, lack of inherent distinctiveness and insufficient proof of acquired distinctiveness.
- Vertex appealed the refusal to the Trademark Trial and Appeal Board (TTAB) in an ex parte appeal.

## Issues

1. Whether a sound produced by a product in the normal course of its operation can be inherently distinctive for that product.
2. If not inherently distinctive, whether the applicant proved acquired distinctiveness under Lanham Act § 2(f) sufficient for registration.
3. Whether the proposed operating sound was functional such that trademark registration would be barred.

## Decision

- The TTAB affirmed the examining attorney’s refusal to register the sound mark.
- The TTAB held that a sound emitted by goods in their normal operation is not inherently distinctive for those goods.
- Because inherent distinctiveness was unavailable, the mark required proof of acquired distinctiveness, which Vertex did not establish on the record.
- The TTAB treated the alarm sound as closely tied to the product’s signaling purpose, warranting careful application of functionality principles in assessing registrability.

## Legal Principles

- Product-operation sounds (i.e., sounds generated when goods perform their intended function) are not inherently distinctive as trademarks for those goods.
- Registration of such sounds on the Principal Register generally requires acquired distinctiveness under Lanham Act § 2(f), shown by evidence that consumers perceive the sound as a source identifier rather than merely a product feature.
- Where a proposed sound mark serves an alerting or signaling role that contributes to product performance, functionality concerns weigh against granting exclusive trademark rights absent strong source-identifying proof.

## Conclusion

The TTAB refused registration of an alarm’s operating sound, ruling that sounds produced during normal product operation cannot be inherently distinctive and that the applicant failed to prove acquired distinctiveness necessary to overcome the refusal, particularly given the sound’s utilitarian signaling role.


In re Vertex Grp. LLC, 89 U.S.P.Q.2d 1694 (T.T.A.B. 2009)