The “chirp”, or 911 Hz sound, is made by Motorola’s two-way radios, which are used mainly by law enforcement officials and emergency units. Nextel challenged Motorola’s attempt to register the sound with the USPTO, arguing first that the sound fails to function as a mark and second, that even if used as a mark, the chirp is not inherently distinctive and has not acquired distinctiveness.

In an opinion issued last week, the TTAB said: “In short, the record simply does not support applicant’s claim that it uses the 911 Hz chirp as a trademark. There is no evidence, for example, that applicant has attempted to promote recognition by consumers or potential consumers of the 911 Hz chirp as a trademark either in its printed advertisements, training manuals or classes, at trade show demonstrations, or on its website.”

The case is significant in that it deals with the developing area of non-traditional marks, which have been historically difficult to register. Turkey and Chile each approved registrations of their first sound marks just last year.

Perhaps the most famous sound mark to be rejected in the US was the distinctive rev of Harley Davidson’s motorcycle engine, which it attempted to register in 1994.

Nextel has also filed an opposition against Motorola for its 1800 Hz sound for cellular phones and two-way radios. The company submitted an application to the USPTO for its own similar 1800 Hz sound mark, which is suspended until a decision has been made on Motorola’s application.

A search of the USPTO’s TESS system shows that there are 361 (live and dead) sound marks listed in the register.

John Stewart of Crowell & Moring represented Nextel in the case, while Thomas Williams of Brinks Hofer Gilson & Lione acted for Motorola.