Sunday, March 26, 2017

Sound Registration in India - Trademark Office

Jingles and chimes can make trademark noise

Did you know that the National Stock Exchange's theme song is registered as a sound mark in India? The Trade Mark Rules, 2017, which were notified recently, have revised the procedures and made it easier for companies to file applications for registration of sound marks, by appending an MP3 file in the application.

Over the years, there have been only a handful of registrations of sound marks in India—the first being the 'Yahoo Yodel' of Yahoo Inc, which applied in 2004 for registration of the sound of a human voice yodelling the word 'Yahoo'. For a sound mark to be registered, the applicant needs to prove factual distinctiveness of the sound—in other words, there must be a recall of the sound with the product or service.

Sounds can be a corporate jingle (ICICI Bank) or the sound heard on logging into a device (Nokia).

"In today's world, where people have access to various technologies, sound plays an important role in the marketing process. People associate goods or services with the sound which represents it," points out Vikrant Rana, managing partner, SS Rana & Co, an IP law firm.

Shwetasree Majumder, co-founder, Fidus Law Chambers, agrees: "It takes brand recognition to another level. It paves the way for asserting a trademark even when you can't use a word or a logo in a setting. In businesses that are largely intangible, registration of sound marks is certainly of value".

Traditionally, companies registered words, names, labels, acronyms, signatures with the trademark registry. Procedural challenges deterred many companies from registering sound marks. "Prior to notification of the revised rules on March 6, an application for registration of a sound mark required the applicant to submit its graphical representation, viz: musical notations and written description. As not many people can read music, this itself was an obstacle at all stages involved in the registration process—be it examination by the trade mark registrar or opposition to its registration," points out Rana.

The sound mark was published in the trademark journal as a graphical representation which not many people would understand and the registration certificate also consisted of the sound mark as a graphical representation, he adds.

"The new rules permit applicants to attach an MP3 sound track, together with graphical representation of the musical notation, this will be helpful and will encourage companies to come forward and protect their sound marks," says Raja Selvam, managing attorney at law firm, Selvam and Selvam.

This small but crucial change in the application procedures could see a renewed interest in registration of sound marks.
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