Sound Trademark Introduction

Trademark is one of the major areas of Intellectual property and its aim is to safeguard the mark of the product or of a service. Previously, trademarks were associated with logos, letters, words, etc. Hence, a new concept was introduced in Trademark Rules 2017 which is also known as non-conventional trademark which does not belongs to any pre-existing category of trademark.

A trademark may be called as non-conventional when it does not fall in the ambit of logos, letters, and words but on the contrary are based on shape, smell, motion, sound, taste, and texture. The trademark rules had given more exclusive rights to the businesses for their musical or sound branding and in marketing tactics which will attract more consumers in today’s disruptive market. This article will emphasize on the legal aspect of a sound trademark as a non-conventional trademark.

Definition

Several countries like U.S.A, Australia, and the U.K have substantially embedded ‘sound’ in the definition of trademark through suitable amendments time by time in their respective trademark laws. Although, the Indian Trademarks Act, 1999 is silent about ‘sound trademark’, as the act explicitly laid down that the marks have to be capable of ‘graphically represented’ to get registered. Hence, with respect to a graphical representation of sound marks, India has simply adopted shield mark doctrine.

However, Trademark Rule 2017 in rule 26(5) states that an application for the registration of a trademark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format not exceeding thirty seconds length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations.

The submission of MP3 format for trademark will bring some positive change in the uniformity and accessibility of maintaining records for users as well as trademark officials.

Sound: An Unconventional Trademark

A sound mark is said to be a non-conventional trademark as it performs the trademark execution of imperative identifying the commercial origin of products and services. Sounds shall be considered as a source of identifying and registering it as a trademark for any product.

In Australia, the Trademark Act was amended in 1995; the definition includes shape, colour, sound or scent in broad terms. Simultaneously, the European Court of Justice took nearly a decade to elapse that ‘sound’ can be determined as a trade mark in Europe.

Therefore, in India the Trademark Rules manual claims that the Trademarks Act 1999, explicitly exclude sound marks from registration nor does it stipulate that a trademark must be visually perceptible. But in the 2017 amendment, a trademark may consist of a sound which can be perceived to be associated with distinguished series of distinctive musical notes, with or without any word.

National laws and International treaties focus on the empirical definition of the trademark. Article 15(1) of the TRIPS agreement acknowledges that any ‘sign or any combination of signs are capable enough of distinguishing the goods or services and constituting a trademark.

On the other hand, the registration of sound was not given proper treatment except in foreign countries like the USA and U.K. Therefore, the Indian Judiciary is having a progressive approach to trademark laws and taking guidance from various precedents.

What are the Important Pre Requisites for registering Sound Trademark?

  • The main element for sound mark registration is the ‘Factual Distinctiveness’ of the sound which means the exclusive recall value of the sound with product and service in the mind of people needs to be proved.
  • The applications should be filed on TM-A from in a prescribed manner.
  • According to new provisions, it requires the sound to be submitted in the MP3 format not exceeding 30 seconds length and graphical representation of the sound symbols.
  • The application should clearly state that it is sound marks otherwise the application might be interpreted wrong.
  • The sound should have a musical notes, the pitch of the music, relative value, sharps, flats, etc.
  • As a result, a rise in the number of applicants applying for registration of sound marks can be expected in the upcoming times.

Some examples of registered Sound Trademarks in India/USA are as follows:

  • National Stock Exchange (theme song)
  • ICICI Bank (corporate jingle music)
  • Britannia Industries ( four bell sound)
  • Yahoo Yodel (human voice saying Yahoo)
  • Nokia (Guitar sound while switching on the device)
  • Airtel Ringtone ( composed by A.R Rahman)
  • MGM Entertainment (roaring lion sound at the beginning of the film)
  • Fox Entertainment Group (thunderous starting sound)

Conclusion

At this point, with the dynamic advent of the new statutes giving demonstrative recognition and clarity on sound trademarks, several matters might occur that will be dealt and settled in the upcoming future. This will certainly give rise to the development and progress of the legal framework with reference to such non-conventional trademarks in accordance with the momentous propulsion for brand creation in this area.

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