Conventionally, trademarks included marks that could be represented graphically and could be used by the human eye to discern a product or brand from another one. The basic premise behind a trademark was to enable the public to recognise the source of goods and services and to allow the owner of the enterprise to capitalise on the name and reputation of the goods and services through a well-known mark that was associated with the business.
With the advent of modern technological advancements and rapidly evolving industry practices, there arose newer ways of identifying sources of goods and services, the sound being one of the most prominent ones. Once excluded from the ambit of trademarks, sound has now become a prominent way of identifying sources of various goods and services.
The businesses providing the goods and services, through advertising and marketing, have provided the public with newer ways to identify their brand and that includes the sound in the advertisement associated with the business. A sound trademark uses sound to uniquely identify the commercial source of items, goods, and services. In recent years, sound trademarks have gained popularity as a trademark in the marketplace as sounds can aid in determining the origin of a particular product or service.
Anyone who has ever logged into Netflix, one of the world’s foremost streaming services, would identify the ‘ta-dum’ sound that the app plays when you open it. A similar example is the guitar musical notes played by Nokia phones upon starting up. Another major example of a sound that could be used to recognise the business behind it is the distinctive roar of a lion, used by the Hollywood film studio MGM at the beginning of movies produced by it. Nokia and MGM have registered their sound trademarks in the United States of America.
India explicitly recognised sound as a form of a trademark in the Trademarks Rules, 2017. Prior to the recognition of sound trademarks as a separate category, candidates were required to register their applications through a visual representation of the melody or by typing out the melody. The sound must now be submitted in MP3 format, which is a new requirement. The sound should last no longer than 30 seconds. Rule 26(5) of the 2017 rules lay down the requirement to include a graphical representation of the sound notations, which includes the pitch, sharps, flats, and other relevant details to be used to verify the originality of the sound. The trademark registration application must also specify it as a sound trademark. The sound must be distinctively recognisable and should be associated with a specific undertaking providing any goods or services. All of the other statutory requirements laid down under the Trademarks Act, 1999 remain applicable on applications for sound trademarks.
Yahoo was the first sound trademark to be granted trademark registration in India, and ICICI was the first Indian entity to register a sound trademark. Another well-known sound trademark is the Airtel ringtone which was composed by A.R. Rahman. As of November 2021, there are over 25 registered sound trademarks in India.
With the enforcement of the Trademarks Rules, 2017, sound marks are now protected by statutory authority, and developments such as these will play a substantial in bringing India’s IPR regime at par with those of Western countries.
DISCLAIMER-
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
AUTHOR:
Raunaq Bali
Student, Faculty of Law
University of Delhi
Trade Secrets- by Sejal Chaturvedi 