Vertex Group LLC

Trademark Trial and Appeal Board

Feb 13, 2009

No. 76601697 (T.T.A.B. Feb. 13, 2009)

Mailed:
February 13, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Vertex Group LLC
________

Serial No. 76601697
Serial No. 78940163
_______

K. Danica Ray of DLA Piper US, LLP for Vertex Group LLC.

Jason Paul Blair, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).1
_______

Before Quinn, Hairston and Rogers, Administrative Trademark
Judges.

Opinion by Rogers, Administrative Trademark Judge:

Applicant Vertex Group LLC seeks to register as a
trademark on the Principal Register a sound described as
follows:
… a descending frequency sound pulse (from 2.3kHz
to approximately 1.5kHz) that follows an
exponential, RC charging curve, wherein said
descending frequency sound pulse occurs four to
five times per second, and that over a one second
period of time, there is alternating sound pulses

1 Tricia Sonneborn of Law Office 110 examined application serial
no. 76601697 until reassignment of the case during the appeal.
This Opinion is a
Precedent of the TTAB
Ser No. 76601697 and 78940163
2
and silence with each occurring approximately 50%
of the time during a one second period of time.2

Registration of the sound is sought for goods
identified as a “Personal security alarm in the nature of a
child's bracelet to deter and prevent child abductions,” in
Class 9 (application Serial No. 76601697; the “child’s
bracelet application”) and as “Personal security alarms,”
in Class 9 (application Serial No. 78940163; the “personal
alarms application”). Both applications were filed based
on applicant’s stated intention to use the mark in commerce
for the identified goods. Though the applications were
examined separately, the same examining attorney briefed
the appeals. In view of the virtually identical issues
presented, the Board has chosen to issue this single
decision.
Notwithstanding the differing courses of examination,
both applications have been finally refused on the ground
that the proposed mark is functional, see Trademark Act
§2(e)(5), 15 U.S.C. §1052(e)(5), in that the sound is a
feature of the goods that serves a utilitarian purpose. In
addition, both applications have been refused under
Sections 1, 2 and 45 of the Act, 15 U.S.C. §§1051, 1052 and

2 A recording of the sound can be heard by accessing an audio
file accessible through the USPTO website, at the following
address: http://www.uspto.gov/go/kids/soundex/78940163_0001.mp3.
Ser No. 76601697 and 78940163
3
1127, on the ground that the proposed mark does not
function as a mark to identify and distinguish the source
of applicant’s goods from similar goods of others.
Evidence in the Applications
As noted, both of the involved applications were filed
based on applicant’s stated intention to use the sound as a
mark in commerce. The child’s bracelet application, not
having been refused during initial examination, was amended
to assert use of the proposed mark in commerce after
applicant received a notice of allowance from the Office.
Thus, there is a specimen of use present in that
application file. The personal alarms application remains
based on intent-to-use and has no specimen. Nonetheless,
because the same refusals were made final in each
application, applicant has submitted considerable evidence
in each to support its claim that the sound is not
functional, is inherently distinctive and is registrable.
This evidence in the respective applications overlaps a
good deal, though there is more in the child’s bracelet
application. It appears from the totality of the evidence
that applicant has, to date, only produced and marketed a
personal alarm for use by children, specifically, a
combination watch and personal alarm for children, which
Ser No. 76601697 and 78940163
4
applicant refers to as the “AmberWatch.” Evidence offered
in one or both applications includes the following:
►Reprints from the website www.amberwatch.com,3 one
page of which has a “click to hear” feature that allows
website visitors to listen to “the Unique Sound of
AmberWatchTM.” Other pages from the site include the
following statements:
“When the AmberWatch® is activated, it emits a
115-decible, [sic] trademarked alert signal that
can be heard from over a football field away.”

“The trademarked sound of the AmberWatch® Alert
Signal is so unique and draws so much attention
that everyone around can be made aware that it
means there is something amiss.”

“The creators of the AmberWatch® knew that they
wanted a volume that reached over 100 decibels;
they had to reject several versions before they
were happy with how loud the Alert Signal [watch]
was[,] while remaining compact enough to fit on a
child’s wrist. The result was all original
engineering and a patented technology! The
AmberWatch is truly an engineering marvel.”

“Trademarked alert signal. The unique sound and
rhythm of the AmberWatch® Alert Signal has been
trademarked, which means that it won’t be
mistaken for any other sound. The trademarked
AmberWatch® Alert Signal means a child is in need
of immediate help.”

“The AmberWatch is more than 4x louder than a
screaming child!”4

3 More pages from this website were made of record in the child’s
bracelet application than in the personal alarms application.

4 On the amberwatch.com “how it works” web page, there is a chart
that lists the decibel levels of various sounds, including that
of a screaming child and of the AmberWatch. Though these sound
Ser No. 76601697 and 78940163
5

►A reproduction of what appears to be a multi-panel
package insert or product instruction booklet for the
child’s bracelet.5
►A 13-slide “Retail Presentation” dated September 2005
that is geared toward prospective retailers of the
AmberWatch.6 A “Background” slide says AmberWatchTM was
founded in 2002, and brought its “AmberWatchTM product to
market in Q4 2004 and to date has sold close to 10,000
units (without retail presence).”7 A “Competition” slide
reads “There are currently no products that compete in the
retail channel with AmberWatchTM.” A “Public Relations”
slide notes August 2005 media coverage and scheduled
coverage in magazines for September and November 2005.
►The specimen accompanying the statement of use filed
in the child’s bracelet application, specifically, a color
reprint from the AmberWatch website, referring to the

levels are listed as only 20 decibels different, the page states,
“Remember, the decibel system is logarithmic, not linear, and
every increase of 6dB is actually a doubling of the loudness.”

5 Submitted only in the child’s bracelet application.

6 Submitted only in the child’s bracelet application.

7 This particular slide uses AmberWatch both as a reference to a
company and to a product. Other slides in the presentation also
use AmberWatch as the name of a company. Nowhere in the
presentation is there a reference to Vertex Group LLC. We
construe this as an indication that applicant has chosen to use
the word AmberWatch both as a business name and a product name.
Ser No. 76601697 and 78940163
6
product as a “Super-Loud Child Safety Alarm” and displaying
a link to an audio file of the sound (“Experience the
AmberWatch Click to Hear Safety Alarm”).
►The published patent application covering the
“AmberWatch,” described therein as a “personal safety
device” or “personal security device,” which specifically
discusses various embodiments for children, adults and the
elderly. The application abstract explains “The alarm
circuit may be an audible alarm (80-125 decibels) circuit,
a visual alarm circuit, an odor alarm, an electronic signal
generation circuit or may generate a tracking signal.” The
description of an exemplary embodiment focuses on that of a
digital wristwatch with a “loud alarm,” but notes that the
device “may include a volume control for the audible signal
so that, for example, the volume may be adjusted (to be
louder or quieter).” The description also notes the
presence of a chamber for a sound generation element and
the preference for “a plurality of holes located on the
sidewall.” The size of the holes “may be adjusted
according to the pitch of the sound that is generated, the
desired volume, etc.” The application does not otherwise
discuss any particular features for the audible alarm that
can be generated by the device.
Ser No. 76601697 and 78940163
7
►Reprints from the “Harmony Central” website
(www.harmony-central.com) with information defining pitch
and frequency, and which includes a list of “useful pitches
and frequencies.” This refers to both the “nominal lower
limit of hearing (20 Hz)” and the “nominal upper limit of
hearing (20 kHz).”
►Reprints from numerous websites exhibiting
competitive products (personal security devices). These
devices are all promoted as utilizing loud alarms ranging
from 100 to 140 decibels, and the sites include the
following statements about the alarms:8 “One of the loudest
and most earpiercing sirens available today. Be warned!”;
“foul odour, UV tracer and earpiercing Alarm function”;
“ultra-loud alarm”; “high output alarm”; “an extremely loud
siren-like sound”; “‘ear-piercing’ blast readily
recognized”; “ear-piercing, blood-curdling 118 DB blast of
sound”; “high pitch tone alarm”; and “high pitched shriek …
is readily recognized as an emergency call for help”. Most
of the products featured on the websites are key chains or

8 The websites include www.streetdefender.com, www.c-p-p.co.uk,
www.globalsources.com, www.tbotech.com/personal-alarms,
www.mypreciouskid.com/alarm, www.tradekey.com, www.alibaba.com,
and www.guarddog.net.

Ser No. 76601697 and 78940163
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other devices, and appear to be only alarms or security
devices, and do not include combination watches/alarms.9
►An article from the Wall Street Journal’s web-based
publication (http://online.wsj.com) about “the pending
launch of a Global Positioning System [GPS] software
application called AmberWatch Mobile.”
►Reports of media coverage of, or press releases
about, applicant’s product, about the AmberWatch
Foundation, and about events or stores featuring
distribution or sale of the AmberWatch. Some of this
evidence discusses corporate and other sponsors
underwriting distributions of children’s bracelet alarms to
at-risk youth. For example, one press release reports on
the “first major giveaway of Project AmberWatch, a
fundraising initiative for the AmberWatch Foundation,” and
the distribution of 400 “AmberWatches®” to at-risk youth in
Montebello, CA. This press release mentions the
“trademarked alert signal and super bright flashing LED

9 The record may appear to include contradictory submissions, in
that applicant’s slide presentation for prospective retailers of
the AmberWatch says there are “no products that compete in the
retail channel with AmberWatchTM,” but applicant has submitted the
websites showing what applicant refers to as “competitors in the
personal security devices market” (p. 4, Request for
Reconsideration in child’s bracelet application). As the
competitors do not appear to produce a combination watch and
personal alarm, we construe the statement in applicant’s slide
presentation as a reference to this fact.

Ser No. 76601697 and 78940163
9
lights” of the watch. A media release for a campaign in
San Diego refers to the “AmberWatch’s trademarked sound”
and distribution of 75 of 800 watches allocated for at-risk
youth, and reports that the event garnered a lot of TV
coverage, print media coverage, and website coverage on
media outlets’ websites; a press release after the event
also refers to the trademarked signal. Other materials
discuss the availability of applicant’s watch in Yoke’s
Fresh Markets in the Pacific Northwest, and refer to the
alert signal as a 115-decibel signal, but do not refer to
the signal being trademarked. Except for reported media
coverage of the San Diego event, all the rest of this
material consists of press releases about events or
initiatives, not about press coverage received. Applicant
also submitted an excerpt from media coverage received on
CNN’s Prime Time.
►Material demonstrating distribution to and airing of
radio public service announcements (PSAs) via 100 radio
stations in 16 states. It is stated that the PSAs will be
rotated with others and broadcasting of them is voluntary,
so some stations may not air them unless they have unsold
(“remnant”) air time.10 This material includes a list of

10 The only specific records show PSA airings on radio stations in
Lima (OH), Gallup (NM), Tucson (AZ), and Tuscaloosa (AL).
Ser No. 76601697 and 78940163
10
entertainment celebrities and athletes who are
“contributors” to Radio and Television PSAs, which appears
to be a reference to their contribution of time to record
the PSAs. Recordings of the nearly two dozen radio PSAs
were made of record on CDs. A representative transcript is
below:
“Hi. I’m Al Roker. The sound you’re about to
hear means a child may need your help. [alarm
sound played] If you hear this sound, a child
may be in danger. Be aware. Be alert. And
let’s all work together to stop child abduction.
[Announcer:] Brought to you by the AmberWatch
Foundation.”

►Ads showing the AmberWatch product available online
at Target.com, Amazon.com, NexTag.com, ANTOnline,
TheNerds.net and Zappos.com.
►The child’s bracelet application itself says the
“bracelets contain the ability to generate a sound in
connection with an alert device wherein the sound is
audible to a range of 400 feet from the source and operates
at a level of 105 decibels.” The personal alarms
application, although it includes the same description of
the sound proposed for registration, does not include a
statement about the volume of the sound produced by the
personal alarms.
►The audio file of the alarm sound, which plays for 8-
9 seconds; but it is clear from the record that the alarm
Ser No. 76601697 and 78940163
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sound can play continuously for 30 minutes or more when the
alarm watch is activated.
The evidence offered in support of the refusals of
registration in the two applications is virtually
identical, notwithstanding review of the applications by
different examining attorneys, and includes:
►Definitions of the word “alarm,” including “a device
that signals the occurrence of some undesirable event,” “an
automatic signal (usually a sound) warning of danger,” “any
sound, outcry, or information intended to warn of
approaching danger,” “a warning sound; signal for
attention,” “Animal Behavior. any sound, outcry, chemical
discharge, action, or other signal that functions to draw
attention to a potential predator,” and “An electrical,
electronic, or mechanical device that serves to warn of
danger by means of a sound or signal” (from various sources
collected at http://dictionary.reference.com).
►An article titled “Human Hearing: Amplitude
Sensitivity Part 1” (dated April 5, 2005), retrieved
January 4, 2007 from www.audioholics.com, which reports “20
Hz to 20 kHz” as “the frequency response across the audible
spectrum.” One point of the article is that the
Ser No. 76601697 and 78940163
12
perceptions of sounds are highly dependent on “frequency,
age, sex, and background-noise level.”11
►Reprints of pages from the amberwatch.com website,
already discussed in detail, above, in our review of the
evidence submitted by applicant.
►A paper titled “Detecting Alarm Sounds” by Daniel
P.W. Ellis, Department of Electrical Engineering, Columbia
University.12 The report recounts investigation of
“automatic recognition of [alarms such as phone rings,
smoke alarms and sirens] both because of the practical
applications for the hearing impaired, and also because
alarm sounds are deliberately constructed to be easily
heard.” The report also states that 3000 Hz or 3kHz “is
close to the region of greatest hearing sensitivity.”
►Excerpted pages from a publication (No. CPSC-ES-0502;
December 2004) of the U.S. Consumer Product Safety

11 In Office actions, the examining attorneys appear to have
relied on the audioholics.com website as support for the
contention that “humans can most easily perceive sound
frequencies between 2000 and 4000 Hertz,” but we do not find
support for the contention in the article. Further, other
evidence, discussed infra, shows that human “hearing is typically
optimal between 1000 and 4000 Hz.”

12 The paper is undated, but the most recent of its cited
references were published in 2001, so we conclude that the paper
was prepared in 2001 or later. There is nothing, however, to
indicate whether the paper was ever published and, if so, in what
way. Nor is there an indication of the source of the paper,
i.e., from where it was obtained.

Ser No. 76601697 and 78940163
13
Commission, titled “A Review of the Sound Effectiveness of
Residential Smoke Alarms,” which includes the following
information:
The most common unit used to measure sound
intensity is the decibel, or dB. The decibel
scale is a logarithmic scale – that is, an
increase of 10dB in sound intensity represents a
10-fold increase in sound power….

Pitch increases as the number of Hz increases.
The human ear can discern sounds ranging from 20
to 20,000 Hz, but … hearing is typically optimal
between 1000 and 4000 Hz. A sound with a
frequency spectrum in the 1000 to 4000 Hz range
will be perceived as being louder than a sound of
equal sound energy that is comprised
predominantly of frequencies outside of this
range. As adults age, a significant proportion
experience a gradual, subtle hearing impairment,
which is typically first manifested as a reduced
ability to detect higher frequency sounds
(between 3000 and 6000 Hz).

The CPSC paper also explains that “a residential smoke
alarm is typically between 3,500 to 4,000 Hz” and a
voluntary Underwriters Laboratories standard requires an 85
decibel sound at a distance of 10 feet from the alarm’s
horn. Further, the standard requires the signal to have a
“‘three pulse’ temporal pattern,” meaning the sound will
pulse on and off in a particular pattern. While smoke
alarms at one time “produced a continuous sound when
alarming,” the three pulse pattern has become accepted and
is incorporated into other standards and codes.
Ser No. 76601697 and 78940163
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Many of the rest of the CPSC article excerpts deal
with assessment of the effectiveness of various alarms in
awakening individuals of different ages and under different
“sleep variables.” However, one page discusses the
characteristics and features of various audio alarms and
includes guidelines for “producing a more audible alarm,”
including the following two:
Use frequencies between 500 and 3000 Hz, because
the ear is most sensitive to this middle range.

Use a modulated signal. For example, use a
warbling sound varying from 1 to 3 times per
second since it is different enough from other
daily sounds such as microwave beeping, clothes
dryer buzzer, etc.

Sound as a Trademark
Before reviewing the evidence recounted above, as well
as the arguments of applicant and the examining attorney,
in the light of applicable law, we consider the treatment
of sound as a trademark or service mark. The Trademark Act
embodies “a flexible approach toward the concept of what
constitutes a service mark or a trademark” and the Board
has recognized that “sounds may, under certain conditions …
function as source indicators in those situations where
they assume a definitive shape or arrangement and are used
in such a manner so as to create in the hearer's mind an
association of the sound with a [good or] service.” In re
Ser No. 76601697 and 78940163
15
General Electric Broadcasting Co., Inc., 199 USPQ 560, 563
(TTAB 1978).13 See also, In re N.V. Organon, 79 USPQ2d
1639, 1644 (TTAB 2006) (the Trademark Act includes a broad
definition of “trademark,” and it is the source-
distinguishing capacity of a proposed mark that is
significant, “not its ontological status as color, shape,
fragrance, word or sign”) quoting Qualitex Co. v. Jacobson
Products Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995).
In General Electric, the Board noted that “a
distinction must be made between unique, different, or
distinctive sounds and those that resemble or imitate
‘commonplace’ sounds or those to which listeners have been
exposed under different circumstances.” 199 USPQ at 563.
Even a sound “so inherently different or distinctive that
it attaches to the subliminal mind of the listener to be
awakened when heard” must nonetheless “be associated with
the source or event with which it is struck.” Id.
Moreover, registration of commonplace sounds and those to

13 General Electric recognized “the registration of such sound
marks as a series of musical chimes (Reg. No. 916,522, issued
July 13, 1971), the ringing of the Liberty Bell (Reg. No.
548,458, issued September 18, 1951), the sound of a creaking door
(Reg. No. 556,780, issued November 25, 1952), the audio and
visual representation of a coin spinning on a hard surface (Reg.
No. 641,872 issued February 19, 1957), a sound consisting of
three short pulses followed by a longer pulse (Reg. No. 922,585,
issued October 19, 1971), and the musical notes, E flat, B flat,
G, C, F, electrically reproduced (Reg. No. 928,479, issued
February 1, 1972).” General Electric, 199 USPQ at 563.
Ser No. 76601697 and 78940163
16
which listeners have been exposed under different
circumstances “must be supported by evidence to show that
purchasers, prospective purchasers and listeners do
recognize and associate the sound with services offered
and/or rendered exclusively with a single, albeit
anonymous, source.” Id; compare with In re Upper Deck Co.,
59 USPQ2d 1688 (TTAB 2001), wherein registration was
refused for a mark consisting of use of a hologram on
trading cards, in part because of other uses of holograms,
even though not as a mark (e.g., for anti-counterfeiting
purposes), which made consumers less likely to perceive any
hologram as a mark.
General Electric contemplates registration on the
Principal Register of sounds as marks, when the sounds are
arbitrary, unique or distinctive and can be used in a
manner so as to attach to the mind of the listener and be
awakened on later hearing in a way that would indicate for
the listener that a particular product or service was
coming from a particular, even if anonymous, source. On
the other hand, General Electric also contemplates that
commonplace sounds, or those which individuals may have
been exposed to under other circumstances, must be shown by
evidence to be distinctive, in other words, commonplace
sounds must be shown to have acquired distinctiveness.
Ser No. 76601697 and 78940163
17
Subsequent to the Board’s decision in General
Electric, the Supreme Court has stated that both color and
trade dress in the nature of product design can never be
inherently distinctive and can only be registered on a
showing of secondary meaning. See Qualitex Co. v. Jacobson
Products Co., 514 U.S. 159, 34 USPQ2d 1161 (1995) (green-
gold color used on dry cleaning press pads protectible as a
trademark because of acquired distinctiveness) and Wal-Mart
Stores, Inc. v. Samara Brothers, 529 U.S. 205, 54 USPQ2d
1065, 1068-69 (2000) (design of children’s clothing items
not protectible except on a showing of secondary meaning).
There is no subsequent case law, however, stating such a
rule in regard to sound marks. Nonetheless, we find it
appropriate to follow the Supreme Court’s rule regarding
color and product design, for certain types of sound marks.
As noted, General Electric draws a distinction between
inherently distinctive sound marks, and those which must be
shown to have acquired distinctiveness. When a sound is
proposed for registration as a mark on the Principal
Register, for goods that make the sound in their normal
course of operation, registration is available only on a
showing of acquired distinctiveness under Section 2(f).
Examples of such goods would include products such as alarm
Ser No. 76601697 and 78940163
18
clocks, appliances that include audible alarms or signals,
telephones, and the alarm products of applicant.14
In these cases, applicant seeks registration of the
alarm sound without resort to Section 2(f) of the Trademark
Act, 15 U.S.C. §1052(f).15 In view of our holding that
registration on the Principal Register of the sound emitted
by applicant’s product in its normal course of operation is
only available on a showing of acquired distinctiveness,
registration is refused. However, we note that even in the
absence of the rule we announce in this decision,
registration is refused on the two bases advanced by the
examining attorney, as discussed below.
Failure to Function as a Mark
We first address the refusal under Sections 1, 2 and
45 and the question of whether applicant's proposed mark

14 Our list is for illustrative purposes only and not intended to
foreclose future inquiry into whether sounds made by other
products might also be registrable only on a showing of acquired
distinctiveness.

15 There is a distinction, of course, between the two
applications. As the child’s bracelet application was amended to
assert use in commerce, it could have also been amended to claim
acquired distinctiveness, but the personal alarms application,
which remains based on intent to use, cannot proceed under
Section 2(f) (or on the Supplemental Register). In any event,
applicant seeks registration of the mark without resort to a
claim of acquired distinctiveness in either application. Even if
applicant were seeking registration under Section 2(f), no amount
of evidence of acquired distinctiveness would overcome a prima
facie showing by the examining attorney that the sound is
functional under Section 2(e)(5). See 15 U.S.C. §1052(f).

Ser No. 76601697 and 78940163
19
functions as a trademark. “Implicit in the statutory
definition of a ‘trademark’ … is a requirement that there
be a direct association between the matter sought to be
registered and the goods identified in the application,
that is, that the matter is used in such a manner that it
would be readily perceived as identifying such goods.” See
N.V. Organon, supra, 79 USPQ2d at 1649. See also, 15
U.S.C. §1127; and In re Roberts, 87 USPQ2d 1474, 1478 (TTAB
2008). Of course, because applicant’s products actually
emit the sound proposed for registration as a mark, there
is in a purely technical sense a direct association of the
sound and the product. But that is not the type of direct
association contemplated by the statute and case law.
Rather, the association must be one of origin or source,
and one that would be drawn between the sound and the
product by prospective purchasers, when they hear the
sound. See General Electric, supra, 199 USPQ at 563 (the
sound must “be associated with the source or event with
which it is struck”).
As is the case with any trademark, mere intent that a
word, name, symbol or device function as a trademark or
service mark is not enough in and of itself. See In re
Morganroth, 208 USPQ 284 (TTAB 1980). Thus, the mere fact
that applicant describes the sound of its products as
Ser No. 76601697 and 78940163
20
“trademarked” on the AmberWatch.com website and in press
releases regarding the product, does not necessarily mean
that the sound in fact performs as a trademark.16 In the
present case, the critical inquiry becomes: Would the
sound sought to be registered be perceived as a source
indicator or merely as a sound emitted by the personal
alarm to call public attention to the conduct prompting the
alarm? Applicant argues that the sound would be perceived
as an indication of the source of its product. However,
much of the evidence on which applicant relies to support
its argument is essentially in the nature of evidence of
acquired distinctiveness. As noted, because applicant does
not seek registration under Section 2(f), such evidence is
inapposite. Nonetheless, we now examine such evidence on
the theory that applicant has offered it not to show
acquired distinctiveness but, instead, to show that its use
and promotion of the sound, as well as the use and
promotion of the sound by the AmberWatch Foundation, has

16 There is nothing in the record to indicate what applicant means
when it refers to the sound as “trademarked.” It is not
federally registered and there is no evidence that it is the
subject of any state registration. Accordingly, we can only take
these references to be the equivalent of a TM designation or the
like, i.e., an assertion or claim that the sound serves the
function of a trademark. However, the mere use of TM or
“trademarked” does not automatically transform a word, design,
color or sound into a trademark. See In re Aerospace Optics
Inc., 78 USPQ2d 1861, 1864 (TTAB 2006).
Ser No. 76601697 and 78940163
21
educated the consuming public as to the assertedly
distinctive aspects of the sound.
Applicant emphasizes its use of the proposed mark
aurally in ads whenever possible and in its
characterization of the sound as unique when it cannot be
played. The record, however, contains no information on
radio or television advertising by applicant of the
product, whether or not involving aural use of the sound.
Applicant asserts that it has “begun a radio and television
campaign in which celebrities advertise the product and the
sound mark is played,” (briefs, p. 7), but the record
contains evidence only of AmberWatch Foundation PSAs, not
of product advertisements.17 Also, while applicant’s
website invites visitors to click on a link to hear the
sound of its product, and refers to the sound as “unique,”
the record does not reveal how many visitors to the website
actually have clicked on the link to listen to the sound.
Nor does the website describe the sound or instruct
visitors what to listen for if they were to inspect a
personal alarm in a store of one of the retailers that
sells applicant’s product. In fact, there is no indication
in the record whether a prospective purchaser of the

17 All of the exhibits applicant refers to as support for its
contention that it has begun advertising relate to the PSAs.
Ser No. 76601697 and 78940163
22
product would even be able to listen to its sound when
holding a packaged product in a store, or would be able to
“click to hear” the sound when shopping for the product on
a retailer’s website.
Applicant places great reliance on the PSA campaign
and the fact that the sound is played in each announcement.
However, we agree with the examining attorney that such
evidence is not significant. First, it is not at all clear
that listeners would perceive the sound, as played in the
PSAs, to be anything other than an alarm sound. The PSAs
do not refer to the sound as coming from a particular alarm
from a particular source or describe the sound as
distinctive and explain why it should be considered so.18
Nor do the PSAs mention applicant in any way.19 Each PSA
ends with an announcer explaining that the announcement was
“Brought to you by the AmberWatch Foundation.” Under these

18 The PSAs do not even refer to the sound as an alarm sound,
although it is likely many listeners will consider it to be such.

19 Applicant is Vertex Group, LLC, but there is little in the
record to associate the AmberWatch product with that company
name. The NexTag website references Vertex, but other retailers
and applicant’s own website refer to AmberWatch and essentially
use the name of the product as indicating its source. The
limited association of the Vertex name with the product does not
prevent the sound from serving as a trademark, for as General
Electric recognizes, the source of a product differentiated from
those of competitors by a sound mark may be an anonymous source.
Nonetheless, as discussed above, the PSAs actually associate the
sound with a separate entity, the AmberWatch Foundation, rather
than applicant.

Ser No. 76601697 and 78940163
23
circumstances, the PSAs do not promote recognition of a
distinctive sound but, rather, only awareness that when an
alarm sounds, a child may be in danger.20
In short, we do not view the PSAs as promoting
recognition of the assertedly distinctive nature of the
sound or as an indicator of the source of a particular
alarm. When listeners hear the closing line “Brought to
you by the AmberWatch Foundation” they will not realize
that the alarm sound is meant as an indicator of source of
a particular product because the sound is not promoted as a
distinctive trademark. The PSAs do not mention what the
sound comes from, only that it is a sound signaling that a
child may be in danger.
In our discussion, infra, regarding the functionality
refusal, we will discuss in some detail the alarm sound
itself, its characteristics, and how it relates to other
alarm sounds. For this discussion of the Section 1, 2 and
45 refusal, however, suffice it to say that alarms, as that
term has been defined in the record, are somewhat

20 Applicant and the examining attorney have discussed at some
length whether the use of the sound in the AmberWatch Foundation
PSAs inures to the benefit of applicant. Such a discussion is
appropriate only if the evidence were presented as evidence of
acquired distinctiveness which, as explained, is not an issue in
these appeals. Since the PSA campaign can only be considered as
evidence that the public has been educated as to the assertedly
distinctive nature of the sound, it matters not whether such
education is conducted by applicant or its related foundation.
Ser No. 76601697 and 78940163
24
ubiquitous. Applicant has shown this by placing in the
record evidence of numerous other producers of personal
alarms, all of which are described as loud, and most of
which, according to applicant, “utilize differing
frequencies and differing arrangements of frequencies,”21
just as applicant’s alarm does. Sound pulses are not at
all an uncommon way for a phone to ring, an alarm clock to
sound, an appliance timer to go off, a smoke alarm to
signal the possibility of fire, or for any number of other
products to provide an audible signal designed to attract
attention. As General Electric instructs, “a distinction
must be made between unique, different, or distinctive
sounds and those that resemble or imitate ‘commonplace’
sounds or those to which listeners have been exposed under
different circumstances.” 199 USPQ at 563. Clearly, alarm
sounds consisting of a series of sound pulses, including
those at frequency or decibel levels approximating those
employed by applicant’s alarms, are commonplace and the
types of sounds to which prospective consumers of
applicant’s products would have been exposed in various
circumstances. To state the obvious, every audible alarm
emits some sort of sound, many similar to that of

21 See the Request for Reconsideration filed in the child’s
bracelet application, at pages 4-5.
Ser No. 76601697 and 78940163
25
applicant’s product; and we do not find that consumers are
predisposed to equate such sounds with the sources of the
products that emit them. See Wal-Mart Stores, supra, 54
USPQ2d at 1069 (“In the case of product design, as in the
case of color, we think consumer predisposition to equate
the feature with the source does not exist.”).
We conclude that applicant’s sound is the type that
General Electric instructs may be registered only if
“supported by evidence to show that purchasers, prospective
purchasers and listeners do recognize and associate the
sound with services offered and/or rendered exclusively
with a single, albeit anonymous, source.” General
Electric, supra, 199 USPQ at 563. The record in these
cases does not include such a showing and certainly does
not show the sound of applicant’s alarms to be so
distinctive that it can be registered on the Principal
Register without a showing of acquired distinctiveness.
The refusal under Sections 1, 2 and 45 is affirmed in each
case.
Functionality

The Trademark Act provides that a proposed mark may be
refused registration if it “comprises any matter that, as a
whole, is functional.” Section 2(e)(5), 15 U.S.C.
§1052(e)(5). The Supreme Court has stated “‘[i]n general
Ser No. 76601697 and 78940163
26
terms, a product feature is functional,’ and cannot serve
as a trademark, ‘if it is essential to the use or purpose
of the article or if it affects the cost or quality of the
article,’ that is, if exclusive use of the feature would
put competitors at a significant non-reputation-related
disadvantage.” Qualitex v. Jacobson, 34 USPQ2d at 1163-64,
quoting Inwood Laboratories, Inc. v. Ives Laboratories,
Inc., 456 U.S. 844, 214 USPQ 1, 4 n.10 (1982). See also,
TrafFix Devices Inc. v. Marketing Displays Inc., 523 U.S.
23, 58 USPQ2d 1001, 1006 (2001). We note that this
standard contemplates at least two possible bases upon
which a finding of functionality may be made. First, if
the product feature is essential to the use or purpose of
the article it may be found functional. See TrafFix
Devices, 58 USPQ2d at 1006 (“Where the design is functional
under the Inwood formulation there is no need to proceed
further to consider if there is a competitive necessity for
the feature.”). Second, if the product feature affects the
cost or quality of the article, so that exclusive right to
use it would put a competitor at a disadvantage, this, too,
may support a conclusion that the product feature is
functional.
The Federal Circuit, our primary reviewing court,
looks at four factors, originally set out by a predecessor
Ser No. 76601697 and 78940163
27
court, when it considers the issue of functionality, and
the factors are particularly helpful for analyzing
functionality under the second approach: (1) the existence
of a utility patent disclosing the utilitarian advantages
of the design; (2) advertising materials in which the
originator of the design touts the design's utilitarian
advantages; (3) the availability to competitors of
functionally equivalent designs; and (4) facts indicating
that the design results in a comparatively simple or cheap
method of manufacturing the product. In re Morton-Norwich
Products, Inc., 671 F.2d 1332, 213 USPQ 9, 15-16 (CCPA
1982). See also Valu Engineering Inc. v. Rexnord Corp.,
278 F.3d 1268, 61 USPQ2d 1422, 1426 (Fed. Cir. 2002).
In the cases at hand, we conclude that the sound
proposed for registration is functional and not entitled to
registration under either view of functionality. Quite
simply, the use of an audible alarm is essential to the use
or purpose of applicant’s products. It is clear, for
example, that applicant touts the loud volume of the sound
emitted by its alarm watch (and emphasizes the loudness
much more than the flashing LEDs). Similarly, the evidence
regarding competitive personal security devices that
applicant put into the record also shows the predominant
use of loud sound as an alarm. In addition, the sound
Ser No. 76601697 and 78940163
28
involves alternating sound pulses and silence, which the
CPSC paper and other evidence shows is a more effective way
to use sound as an alarm than is a steady sound.
Applicant has argued that it is not seeking to
register a sound of any particular loudness. Equally
significant, however, is that the description of the sound
is not limited to a particular volume. Thus, we must
consider it to encompass all reasonable degrees of loudness
for an alarm sound. Cf. Phillips Petroleum Co. v. C. J.
Webb, Inc., 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971)
(“Webb’s application is not limited to the mark depicted in
any special form. In trying to visualize what other forms
the mark might appear in, we are aided by the specimens
submitted with Webb’s application.”). Moreover, it is
clear from the record that applicant’s alarm emits a loud
sound and that the loudness of the sound is an essential
feature of the product. For example, the specimen of use
shows that applicant’s sound is typically used in a loud
manner. In addition, applicant has admitted “[t]he volume
of the alarm is critical.” See September 14, 2005 response
to office action, child’s bracelet application. Indeed, a
soft alarm sound would not draw much attention.
In short, the ability of applicant’s products to emit
a loud, pulsing sound is essential to their use or purpose.
Ser No. 76601697 and 78940163
29
For that reason alone, the functionality refusal must be
affirmed in regard to each application. However, we shall
also consider the question whether the proposed mark is
functional under the Morton-Norwich analysis.
The first Morton-Norwich factor focuses on whether a
utility patent exists disclosing the advantages of the
proposed mark. Applicant argues that it has a utility
patent application for its product, not for its sound.
This argument, however, is undercut by the application’s
focus on a digital wristwatch with a “loud alarm” as an
exemplary embodiment for the product, and the application’s
description of an alarm of 80-125 decibels. The
application does not note the degree of brightness for
lights that could potentially be utilized in a visual
alarm, or the types of odors that could be used for an
olfactory alarm; but it does specify a decibel range for
the audible alarm that would be characterized as loud.
Moreover, even if applicant is correct in its argument that
the existence of its patent application for its product is
not relevant to a Morton-Norwich analysis regarding the
registrability of its sound, the absence of a patent for
the sound would only mean this factor would be neutral in
the analysis of functionality. See TrafFix Devices, 58
USPQ2d at 1006, and In re N.V. Organon, 79 USPQ2d at 1646.
Ser No. 76601697 and 78940163
30
The second Morton-Norwich factor focuses on whether
advertising materials tout utilitarian advantages.
Applicant’s advertising clearly extols the loudness of the
alarm sound, much more than the engineering of the product
that produces the sound. Applicant has admitted as much.
See January 22, 2008 response, child’s bracelet application
(“the advertising touts the degree of loudness”)(emphasis
in original). The advertising material does not tout the
particular frequencies of the sound pulses or the pattern
of the pulses, but applicant has admitted “[t]he volume of
the alarm is critical.” See September 14, 2005 response to
office action, child’s bracelet application. Thus,
applicant’s advertising touts a critical feature of its
sound, as emitted by the identified goods. This factor
favors a finding of functionality.
The third Morton-Norwich factor focuses on whether
competitors would have functionally equivalent sounds
available to them if applicant were accorded the exclusive
rights attendant to registration. Of course, as already
noted, when a proposed mark has been found functional on
other grounds, it is not necessary for the record to also
show use of applicant’s particular sound would be a
competitive necessity. See Valu Engineering, 61 USPQ2d at
1427. Nonetheless, it is clear from the record that alarm
Ser No. 76601697 and 78940163
31
sounds work best when they alternate pulses of sound and
silence, when the sound pulses fall within a particular
range of frequencies, and when the sound is loud.
Applicant argues that there are thousands of specific
frequencies within the range that is most suitable for use
in alarms. That range may be taken as between 1000 and
3000 Hz, based on the information of record. Thus, under
applicant’s analysis the thousands of frequencies within
this range can be combined into countless variations and
therefore applicant’s particular combination of frequencies
need not be employed by other makers of personal alarms.
What applicant’s argument fails to appreciate, however, is
that the description of its mark only specifies that its
sound pulses will be between 1500 Hz and 2300 Hz. Based on
this description, applicant would be free to combine sound
pulses for any of the frequencies within this range, a
large swath of the optimal range of 1000 Hz to 3000 Hz.
While there may indeed be countless combinations of
frequencies available for personal alarms utilizing the
frequencies within the optimal range, registration of
applicant’s sound as described would deprive competitors of
many of those options. It matters not that applicant’s
actual sound may currently use only a handful of particular
frequencies, for it would be free to change the
Ser No. 76601697 and 78940163
32
combinations at any time and still have its sound fall
within the ambit of the description. This factor favors a
finding of functionality.
The final Morton-Norwich factor considers whether the
sound yields applicant a comparatively simple or cheap
method of manufacturing personal alarms. Applicant has
explained, and the record shows, that the sound of its
product has no bearing on the cost or ease of manufacture
of its alarms. This factor is neutral.
Weighing all the Morton-Norwich factors in the
balance, we conclude that the mark applicant has described
in its application and proposes to register is functional
and unregistrable. The functionality refusal is affirmed
in each application, based on both the Inwood formulation
of the sound being essential to the use or purpose of
applicant’s goods and under the Morton-Norwich analysis.
Conclusion
Both grounds for refusal are affirmed in each of the
applications.