‘Sound’ as an Unconventional Trademark: Recognizing the value of a mark

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The term Trademark was propounded primarily for the purpose of distinguishing the product from other identical or similar products has been defined under Section 2(1)(zb) of The Trademarks Act, 1999 which means a mark that is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others and can include shape of goods, their packaging and combination of colors. Hence, in today’s competitive world it enhances the quality of goods because it allows the consumer to identify the service or good that he prefers and to buy it to the rejection of others goods in the future.

It has led to further increase of its scope around the corners as even something unconventional as a sound for a trademark can be registered. It is a sort of trademark where sound is used as a distinctive sign through which an average consumer will perceive that the sound is exclusively associated with the goods or services of one undertaking has been theorized as a soundmark.

A soundmark is considered to be an unconventional trademark because commonly, organizations have registered words or certain logos/designs as trademarks. The suitable description can be of the Apple logo of Apple Inc. that’s registered in various countries. However, as time passed, one can by a jingle or a tune make out the product it is associated with. In another such instance the Metro Goldwyn Mayer in the beginning of their production features the lion’s roar which portrayed them making their presence felt to the public. Hence, sound plays a very vital role in identifying a good or a service, the very function of a trademark.  To understand the significance of a sound mark better, for instance, if Blackberry starts using the default ringtone of Nokia phones, that may be unacceptable to Nokia as it leads to deceptiveness and that default ringtone is what gives a certain exclusivity to the Nokia phones. That’s why a sound mark needs to be protected.

The Indian legislation explicitly lays down the need for the marks to be “graphically represented” in order to get them registered under the said Act. It is inferred from the provisions that the mark can be represented graphically when it precisely determine what the sign portrays. The graphical representation can substitute the mark used by the applicant because it represents that sign and no other. Further, it is reasonably practicable for a person inspecting the register, or reading the Trademark Journal, to understand what the trade mark is.

Therefore, since a trademark has to be graphically represented and need not be visually perceptible a sound can also be registered as a trademark wherein one is required to comply with certain requirements in order to be granted a sound mark from the registry. In the international perspective there are two major approaches that have evolved in order to set the requirements to get a sound mark registered. The provisions in UK provided that along with the description of the mark there has to be graphical representations in the form of musical notations. This ensures that the mark will be clear and precise. Whereas in USA, the description of an audio or video reproduction of the sound must be provided apart from the description of the mark. Since everybody cannot read musical notations even a layman as well can comprehend the mark. Thus, both the approaches have their own factors of favorability.

The European Court of Justice in the case of Shield Mark B v Kist  has held that certain Sieckman criteria requirements will said to be satisfied by a musical notation if it was “represented by a stave divided into measures and showing, in particular, a clef, musical notes and rests whose form indicates the relative values and, where necessary, accidentals”. India has directly borrowed this Shield Mark doctrine. The Draft Manual for Trademark Practices and Procedures states the same requirement of law on the graphic representation. The sound clip in Sonogram or CD recording is accepted. Essentially, the representation must be clear & precise & easily intelligible. For that matter, during registration to define uniqueness, the point that states on how the music was created and the notes have been used will further aid to corroborate the cause. The description of the marks should be such that it would become difficult for other sound marks that are similar to be registered.

In the year 1950, the NBC for its radio broadcasting services was the first to be granted a sound for a trademark in United States of America. The three notes that make up the chimes are G, E& C. NBC was looking for a musical cue which would gesture the end of its programs. Basically, it wished to brand itself in a sound that any listener would immediately associate with that of NBC. On August 18, 2009, the 3-note yodel of the American based internet firm Yahoo was the first sound mark to be registered in India which was represented through musical notes. It is a milestone since it has instigated the trend of granting unconventional trademarks. It has further lead to grant of a sound mark for Allianz, a German Company and Finnish Phone Company, Nokia.

The positive influence of EU and USA regimes can be seen by looking at the above developments. The Indian Trademark registry has finally recognized the value of a mark by registering a sound as a trademark. Sound may not be visually perceptible but it has been proved that it is graphically representable. With evolving times, such a widening of scope in law is anticipated. It nurtures creativity and innovation among advertisers as well when reaching out to the consumers. Keeping technological advancements in mind, the procedure when registering must be made clear and put in place for future purposes. Nevertheless, it is a welcome development as it is opening up avenues in building a brand through sound.

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