In the realm of trademarks, beyond the traditional forms such as text and graphics that we are familiar with, there exists a unique type of trademark—a fascinating presence known as the sound trademark. Sound trademarks, carried by distinctive melodies, rhythms, or sound effects, become an essential element in brand identification. So, what exactly is a sound trademark? And how can we effectively protect this unique brand asset? This article will discuss the definition of sound trademarks, their importance, and strategies for protection.

What is a Sound Trademark?

Sound trademarks, as the term implies, refer to trademarks composed of sounds that can distinguish the source of goods or services. These sounds may be a melody, a rhythm, a specific sound effect, or a combination of these; sound trademarks can be made up of musical sounds, such as a piece of music; they can be made up of non-musical sounds, such as natural sounds, human or animal sounds; or they can be a combination of both musical and non-musical sounds. With the continuous improvement of trademark law and the strengthening of international trends, sound trademarks have gradually been recognized and protected by the laws of various countries. In the United States, Australia, India, and the European Union, among other regions, sound trademarks have been formally included in the trademark legal system as a type of trademark.

In China, to conform to the international development trend of trademark registration and the needs of independent innovation and development of enterprises, the 2013 amendment to the Trademark Law included sound trademarks in the scope of registrable trademarks. Article 8 stipulates that any sign capable of distinguishing the goods of a natural person, legal person, or other organization from those of others, including text, graphics, letters, numbers, three-dimensional signs, color combinations, and sounds, as well as combinations of the aforementioned elements, can be registered as a trademark. This provision provides a solid legal basis for the legality and protection of sound trademarks.

The Importance of Sound Trademarks

Sound trademarks play a pivotal role in brand building. Firstly, sound trademarks possess a high degree of recognizability and memorability. A unique melody or sound effect can leave a profound impression on consumers, even evoking associations with the brand without visual aids. Secondly, sound trademarks can enrich the forms of brand expression and enhance the individuality and differentiation of the brand. Through this unique medium of sound, brands can convey more nuanced and rich emotions and information, thereby establishing a deeper emotional connection with consumers.

Since May 1, 2014, the National Intellectual Property Administration of China (CNIPA) began to accept application of sound trademarks. "The opening melody of China International Broadcasting Station's broadcast program" was preliminarily approved for announcement on February 13, 2016, becoming the first sound trademark registered in China. Other familiar sound trademarks include QQ's notification sound "di di di di di di di di," Intel's highly recognizable "deng deng deng deng" sound, and the startup sound of the Windows operating system, etc..

Protection Strategies for Sound Trademarks

Timely Registration: Brand owners should apply for the registration of distinctive and unique sound trademarks as early as possible. Confirming the exclusive right to use sound trademarks through legal means can effectively prevent others from using the same or similar sound elements without authorization.

Clear Definition of Rights: When applying for registration, it is necessary to detail the specific form and characteristics of the sound trademark, such as melody, rhythm, sound effects, etc., and carefully select the designated goods/services to ensure the clarity and definiteness of the scope of rights. At the same time, it is important to avoid conflicts with existing similar or identical trademarks or other civil rights (such as pre-existing trade name rights, nature person’s name rights, etc.).

It is worth noting that, like traditional trademarks, if a sound is to be registered as a trademark, it must also pass both formality and substantial reviews. The formality examination of a sound trademark refers to the preliminary review of whether the materials submitted for the application of the sound trademark are complete and meet the requirements. Only after passing the formality examination will it enter the substantive examination of the sound trademark. Due to the particularity of sound trademarks, in addition to submitting the general materials required for ordinary trademarks, the application for registration of sound trademarks also needs to pay attention to submitting sound samples, descriptions of the sound, and the use of the sound trademark. The first Chinese sound trademark mentioned above also went through a amendment process during its formality examination stage, requiring a music theory analysis of the score itself, such as how many beats, how many measures, what instruments are played, and what considerations are made in orchestration. The fonts, colors, and shapes of ordinary trademarks can all be described, but sound trademarks are in the form of scores; the description methods are obvious different.  Therefore, the supplementation of these contents is also to better clarify the form of expression and the scope of rights of the sound trademark.

During the substantive examination phase, two main aspects are considered. First, similar to traditional trademarks, sound trademarks must not violate the provisions of the Trademark Law of China regarding prohibition of registration and use. For instance, whether they have negative social impact, or whether they possess the distinctiveness required for trademarks. Secondly, the examination will also primarily consider prior trademark rights. Of course, it is not excluded that third parties may file opposition based on other prior civil rights against the preliminarily published trademark, or take invalidation procedures against the registered trademark.

Therefore, at the very beginning of applying for registration of a sound trademark, it is particularly important to select an appropriate trademark, determine reasonable goods/services and classes to ensure that the trademark complies with the relevant provisions of the Trademark Law, and can protect the business scope of the applicant. This lays a solid foundation for subsequent legal use of the trademark and taking rights protection activities.

Standardized use and retention of use evidence: In practice, the most common issue that sound trademarks face when applying for registration is distinctiveness. Generally, a sound trademark can only acquire distinctive features after long-term use. That is to say, a sound may only be approved for registration as a trademark when relevant publishes establish a specific connection between the sound and the provider of goods or services. Most sound trademarks will be rejected for lack of distinctiveness during substantial examination stage. In such cases, applicants can submit evidence of use in the review of refusal procedure by arguing that the sound mark obtained distinctiveness through massive and longer use. For example, the well-known Chinese e-commerce broadcaster Li Jiaqi applied to register a distinctive phrase used during the live broadcast of goods as a sound trademark (application number 45217353) - "Oh my god, 买它买它 (means “buy it buy it”)!" However, the CNIPA rejected the registration of the trademark with the reason that "the trademark is easy for consumers to understand as a promotional slogan or a descriptive language for the applicant to advertise the designated services, lacking distinctiveness. The evidence submitted by the applicant is still insufficient to prove that the applied-for trademark has established distinctiveness as a sound trademark through use. The applied-for trademark has constituted the situation that cannot be registered as stipulated in the first paragraph of Article 11 of the Trademark Law." Although the application was ultimately rejected, it demonstrated the possibility of protecting personal IP sound trademarks.

Another example is the "Hello, Kugou!" sound trademark under No. No. 27235402 owned by Kugou Company. This trademark was also rejected for lack of distinctiveness uring the application process, but was finally approved for registration on some designated goods in class 9, such as "computer software (recorded), computer programs (downloadable software), downloadable computer application software, downloadable mobile application software, downloadable music files, downloadable mobile ringtone goods, etc." through the review of refusal procedure. In this case, the evidence submitted by Kugou Company during the review procedure included: 1. The relevant decision that the "Hello Kugou" character trademark was recognized as a well-known trademark; 2. Notarized document of "Hello Kugou" (sound trademark) as the startup greeting language of "Kugou" music player software and hardware (PC, Android, iOS terminals); 3. The publicity and use of the sound trademark; 4. The certificate issued by related Association and third party; 5. The market share ranking certificate and backend data notarized by iResearch; 6. Kugou Company's sales audit report, local tax and national tax proof documents; 7. Sales and advertising contracts and invoices of Kugou Company; 8. Honors, etc. The CNIPA, after examination, decided to approve this mark for registration by reasoning that the evidence submitted by Kugou Company can prove that this sound trademark "has established a specific connection with the applicant after long-term use on these designated goods, has obtained the distinctive feature of indicating the source of the above-mentioned goods”.

From the above cases, it is not difficult to see the importance of preserving the use evidence of sound trademarks, which largely determines the probability of the sound trademark being granted.  In addition, after the trademark is registered for more than three years, there is also the risk of being cancelled for "non-use for three consecutive years." The best defense is to use the trademark in a standardized manner during the daily use process and to retain effective use evidence.

Continuous Monitoring: After successful registration, brand owners should continuously monitor for any acts that infringe on their sound trademark rights. Once any infringement is found, legal means should be promptly taken to protect their rights.

Comprehensive Use of Legal Means: In the process of defending rights, the brand owner can comprehensively use relevant laws and regulations such as the Trademark Law and the Anti-Unfair Competition Law to crack down on infringing acts. Additionally, leveraging the power of industry associations and professional organizations can help maintain market order and brand image.

As one of the important elements of brand recognition, the uniqueness and value of sound trademarks should not be overlooked. In the process of protecting sound trademarks, brand owners should fully utilize legal means and technical tools to safeguard their own interests and rights. It is expected that in the future development, sound trademarks will play a more important role in brand building. It is also hoped that Kangxin IP platform (https://eservice.kangxin.com) will be able to escort brand owners in this endeavor.