HBO filed two trademarks for both HBO ENTERTAINMENT and THIS HAS BEEN A PRESENTATION OF HOME BOX OFFICE. Both applications are related to HBO's entertainment services in the nature of ongoing television programs, but HBO filed two applications each to protect the sound element and the motion element of the clips. For example, HBO described the mark on one motion element application as follows:
[t]he mark consists of a motion mark depicting a television screen of static "snow" out of which emerges the HBO ENTERTAINMENT logo appearing, and then the static snow fades out and the HBO ENTERTAINMENT logo morphs to sharp lettering appearing against the background before the wording fades out.and on one sound element application as
[t]he mark consists of a composite motion and sound mark depicting a television screen of static "snow" out of which emerges the HBO ENTERTAINMENT logo, and then the static snow fades out and the HBO ENTERTAINMENT logo morphs to sharp lettering appearing against the background before the wording fades out. Simultaneously with the fading in and out portion of the visual component, the sound element is the sound of static "turning on" and then fading out as it resolves to an ascending choir-like bass chord.It is a subtle difference, but it gives HBO the most protection over the look and sound of its opening and closing slips.
HBO's filings highlight the fact that trademarks do not take the form of a words and slogans only. Both sounds and motions can serve as trademarks if they identify the source of the good or service. The Trademark Manual Of Examining Procedure (TMEP) section 1202.15 provides "[s]ound marks function as source indicators when they 'assume a definitive shape or arrangement' and 'create in the hearer’s mind an association of the sound' with a good or service." Additionally, under TMEP 904.03(l) an applicant may support an application for a motion mark by filing up to five freeze frames showing the commercial impression conveyed by the mark.
In other words, don't assume something is not functioning as a trademark simply because it is not a textual.
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