When the topic of Intellectual Property Rights (IPR) comes up, a new spectrum emerges now and then. IPR is one of the fastest-growing fields of law in recent times. There is a scope for dynamic advancements in all branches of IPR.
One of the exciting advancements is the Sound Mark. Usually, marketing uses pictures, motion pictures, paintings, etc, to promote a particular product or a brand. But recently, there has been so much talking that the sound mark has stirred up. It is a brilliant tool that comes in handy when marketing a product. It differs from a song advertising a particular product or anything on the electronic media spectrum. It lasts up to a few seconds mostly but significantly impacts the product or brand being put out. The “Ta-Dum” of the Netflix intro is an example of this.
In the United States, the first sound that got legal recognition in 1947 was the NBC chimes. It was a three-note sound played on a chime. A similarly popular sound mark is the MGM roar, the famous “Lion roar”, along with the music during the display of the MGM card in a movie. This was registered in the Australian Trademark Registry in 1927. One of India’s earliest and most notable sound marks was the Yahoo! Yodel in 2008.
There are various difficulties in registering sound marks. The need for graphical representation presents a significant challenge. While musical notations can precisely depict musical sounds, accurately representing non-musical sounds like jingles or roars may be more difficult. For a sound to be certified as a trademark, distinctiveness is the foremost criterion to be fulfilled. Distinctiveness means it should not be a familiar sound and must be uniquely identifiable with the brand. Proving this distinctiveness can be difficult, especially for sounds, as it might be considered generic or non-functional. The sound must be utilised consistently in various marketing channels and media. Their enforceability as a trademark can be impacted by variations in the sound, which can dilute their distinctiveness. In India, the Trademark Act of 1999 recognises traditional trademarks such as phrases, symbols, logos, etc.
Despite various challenges, the Trademark Act 1999 includes provisions for registering sounds, smells, and colours as non-traditional trademarks in 2017. Sounds can be registered if they meet specific criteria. According to Section 26 (5) of the Trade Marks Rules 2017, a sound mark to be registered should be produced in MP3 format that does not exceed 30 seconds, along with a graphical representation of the notations.
Businesses and consumers are significantly affected by the identification and protection of sound marks. Sound marks give all kinds of businesses a distinctive method of brand differentiation and identity. The face value of a brand and loyalty can be improved by using a unique sound pattern, which can establish strong emotional and psychological connections. In an increasingly competitive and congested market, musical signatures can facilitate consumers’ identification of brands and products. In Shield Mark BV v. Joost Kisthodn Memex, it was held that even if a graphical representation of music as notes is not immediately intelligible, it is easily intelligible. The jingle of ICICI Bank played a part in reinforcing the acceptance of sound marks in India. Additionally, the recognition of sound marks indicates India’s compliance with international intellectual property standards, motivating foreign enterprises to pursue intellectual property protection in India. It also amplifies the importance of the dynamic nature of trademark law, which must act according to the new market changeset.
Therefore, developing sound marks in India is a substantial advancement in the broader context of intellectual property rights. Although registration and enforcement challenges exist, the law has demonstrated adaptability and progress as usual. Sound marks will become increasingly significant in developing distinctive brand identities as businesses continue to innovate in their branding strategies. This enhances consumers’ brand differentiation and understanding of businesses and encourages a more challenging and dynamic competitive landscape in India.
Done By: Anoushka Samyuktha, B.A LL.B (Hons), LLM (Criminal Law), Junior Legal Consultant
For Origin Law Labs
