Over the years since its inception, the sole objective and purpose of the Intellectual Property Law has been to promote innovation and simultaneously protect the rights of true inventers whether as trademarks, copyrights or any other industrial designs. Along with the several developments introduced in the new Trade Marks Rules 2017, "sounds marks" have made its recognition as one of the most prominently registered marks in current times.
First and foremost, what kind of mark really constitutes a Sound Mark? The said Act does not define sound mark specifically but states that "a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours" are capable of registration under this Act. Such sound marks must be distinctive and unique so as to be registrable and deserve full protection under the Trade Marks Law. Such marks are not specifically defined under the said Act but are tagged along with other non- conventional marks. In India, sound marks such as the Ting –Ting-Ti-Ting of Britannia and Jack White of Coca – Cola are some of the famous and registered sound marks. The corporate jingle of ICICI Bank was the first sound mark to be registered in the name of an Indian entity.
Section 2 of the Copyright Act, 1957, also provides protection for sounds under the 'musical works' category. But both the laws i.e. the Copyright Act, 1957, and the Trademark Act, 1999, involve completely different purpose and protect entirely different line of businesses. While the former protects the artistic/creative work displayed graphically, the later protects the goodwill of the business represented by the said design. However, obtaining trademark protection is still advisable, as the two laws protect completely different rights in the sound. For example, the logo of an Audi Car – the four circles; the four circles, on their own, constitute an artistic work. However, when placed on a car, they represent cars made by the company Audi. If one were to simply sell it as a drawing it would infringe the copyright in the work. On the other hand, if one were to use the logo on cars and subsequently sell those cars, then it would be infringing the trademark rights over the logo. It is a thin line of difference between the two but is extremely significant.
Registration Process of Sound Marks is as easy as a frequent trademark and can be registered under the Rule 26(5) of the Trademark Rules, 2017. It shall be reproduced in MP3 Format not exceeding a length of 30 seconds, recorded on a medium that allows for easy and clearly audible replaying quality along with a graphical representation of its notation.TM-A provides that in case of sound marks, representation of specific musical notes must be submitted at the place provided for the trademark.
While filing sound mark applications, proprietors/ their respective agents need to make sure that they are able to justify that the sound they are seeking are unique and distinctive in nature in order to protect the goodwill of their own business. Though it has taken a long while to acknowledge sound marks in India, but this emergence will certainly take no time to set its recognition permanently in the business market.
All in all, with the occurrence of the new rules giving express clarity and importance to sound trademarks, several issues will arise, be dealt with and subsequently get resolved in the coming times.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.