Author Name:   jessica

The Author endeavours to shed light on the resourceful application of Unconventional Trademarks and propagation of Sound Marks.

Design Your Sound - Make Your Sound A Mark

In India, the Trademarks have been limited to the registrations of conventional marks. The standard set of marks comprising of letters, numerals, logos, symbols, words, labels and figurative devices or including the combination of these elements. In 2008, India obtained the first sound mark of the “YODEL” by YAHOO and boldly crossed the threshold from registrations of traditional trademarks to registrations of non-traditional trademarks.

A non-traditional trademark also known as non-conventional trademark is any type of trademark, which does not fall under the pre-existing customary category and at the same time fulfills the crucial functions of identifying the commercial origin of the goods and services. Every innovative idea of the mind can be legally protected and commercially exploited. The discipline of Intellectual Property Rights helps in converting an intangible property of the mind and lawfully preserving into a tangible property. The Non-Conventional Trademarks therefore may be non-visible signs and visible signs. Visible Signs are marks comprising of distinctive colors, shapes, moving images, holograms and positions are distinctive marks like sound, smell, taste and texture. A person is often perplexed as to how registration of non-visible marks such as a sound mark, an olfactory mark, a gustatory mark or a tactile mark can be registered without the mark being physically visible. This article shall determine how a sound mark, a non-visible mark be registered as Your Trademark.

The Swedish Mall Emporia has also found success using soundscapes to help guide customers. This concept shall bring many contemporary innovations in many other countries. A sound designer can trademark environmental sound designs. Sound designs can be subject to copyright as well. However, it becomes inefficient at the time of dispute to prove its accurate source, as the designed sound shall be non – registered right. A trademark registration can be extended for perpetuity, which is beneficial for a sound designer. Every Registry of Trademark publishes the sound mark in a Public Journal that records the filing date and the proprietor.
In practice the registrations of a non-conventional trademark is similar to a conventional trademark. These marks have been registered under the Community Trademarks. A person seeking to register a non-conventional trademark such as a sound, it is vital to understand that the intellectual property rights considers every identifier as registered and legally enforced so long as they are capable of identifying the source of the goods and services. The registrations of sound marks shall be considered as long as the evidence of distinction and exclusivity is maintained.

India is party to the multilateral agreement which gives a broader interpretation on the definition of Trademarks under Article 15 of The TRIPS. In India, sound marks can be registered if they are capable of being represented graphically which shall be in the form of musical notes satisfying the requirements of graphical representations under the Act.

Thomas Mc Carthy supplemented, “One cannot come to the Bottom-Line conclusion that any term is in the public domain until one has exhausted all of the possible area of exclusive intellectual property rights.”
A sound mark must be precise in a written description that the particular sound must not be confused or conflict with any other sound mark in the commercial industry. The registration requires the musical note composition in a Compact Disc containing the music file in a compatible format required by Registrar of Trademarks alongwith the valid documents for registrations.

In the Shield Marks Case, The European Court of Justice held that musical notes comprising a stave and a cleft is intelligible, precise and stable method of representing sound and hence is a satisfactory form of graphical representation.

From the Lawyer’s Desk

Audio Branding is defined as the strategic use of sounds for positively differentiating a good or services, enhancing a recall, creating preferences, building trust and even increasing sales

The Research and Development Department concluded that a non-conventional trademark caters to every segment in the commercial industry. A visual perception of a brand often becomes difficult to comprehend by a person who is deficient visually or restricted by education. Therefore, a sound mark facilitates the consumer by giving an additional breakthrough within a shortened span of time. A sound mark is an ideal preference for every person who wishes to apply for a novel non-conventional trademark. A sound mark has a mnemonic quality for preserving uniqueness and relevancy to the brand. A sound mark has the ability to create a memory and recall with the audio of the particular brand. We advise to everyone is that every person must legally protect the sound which identifies the goods or services as a trademark. 

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