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Jingle all the way: Trademark for sound in China, EU and USA
The Tarzan yell is known all over the world. But what if I tell you that this sound could be trademark protected. If someone would make a Tarzan toy with that iconic yell, then it might be infringing upon the sound trademark registered by Edgar Rice Burroughs Inc. for toy action figures.
I say might, because sound trademarks are not protected all over the world. Therefore, in this article I will look at China, the US and the EU to see what the status is of sound marks.
Sounds need to be distinctive
Can sound marks be protected in China, the EU and the USA? The answer is yes. Sounds can be registered as trademarks in China, the USA and the EU. Does this mean that all sounds can be registered as trademarks? No, normally a sound trademark needs to be distinctive.
Also, how can you register a sound as a sound mark? Do you need to put it in a musical notation or can you simply submit an audio file for trademark registration? We will look more closely to the various countries below.
China: protection for Tencent since 2018
The protection in China for sound marks is quite young. Only since the new trademark law that went into effect in 2014, can sound marks be protected in China. Have there been many successful applicants in the meantime? No.
Tencent recently succeeded in registering its sound trademark in China.The first distinctive sound trademark that was registered through legal proceedings in China in September 2018, is therefore the Di di di di di di notification sound of Tencent in its instant-messaging and social network services.
EU: digital audio versus musical notation
If you hear a lion roar at the beginning of a movie, why do you associated that with a certain movie making studio? Would this be something that can be protected?
This MGM sound is indeed protected in the EU as a sound mark. Tarzan's jungle yell, as registered by Edgar Rice Burroughs, Inc, is also protected as a sound mark in the EU.
As of 2017, the sound mark can be registered in the EU by an audio file reproducing the sound or by an accurate representation of the sound in musical notation. The previous requirement of graphical representation was abolished in 2017.
USA: digital filefrom the start
In the USA, a digital file can be submitted with the sound recording in order to register for a sound mark.
The first registered sound mark in the USA was NBCS chimes in 1971.
Current known sound marks in the USA include the Intel-sound-trademark, the Netflix sound mark, Tarzan's jungle yell and MGM's lion roar.
Harley Davidson for many years tried to obtain protection for the sound of its engine. However, due to legal encounters with Kawasaki and Honda, it stopped to try and obtain sound mark protection in the USA.
Monopoly on sound, a good or a bad thing?
Protection for sounds is a good thing. After all, it adds another possibility for brands to distinguish themselves from competing products of competitors.
Naturally, it is important that the trademark is distinctive, the consumer needs to be able to relate the sound to the specific brand.
With the first successful registration of sound mark of Tencent in China, and the fact that audio formats can now be registered as sound trademark carriers in the EU, I expect to see more sound trademarks in the EU and China.
The USA, from the start very active in the field of sound marks will keep continuing at this filing level. Jingle all the way.
HFG Law&Intellectual Property
