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See, Hear, Smell, Touch a Trademark: Sound and Other Non-conventional Marks


The first sound mark has been recently registered in India. Japan may soon follow suit. As legislative changes expand the meaning of "trademark," some non-conventional trademarks have become more widely accepted.

It may be difficult to register. But it may nevertheless fulfill the basic trademark function of uniquely identifying products and services. A non-conventional (or non-traditional) trademark is one that does not belong to a conventional set of marks (like letters, numbers, logos, pictures or symbols), but may instead be marks based on shape, sound, smell, taste and texture.

This growing trend has been the result of IP-related international treaties such as the Agreement on Trademark-Related Aspects of Intellectual Property Rights, which broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings." In the United Kingdom, colors have been granted trademark protection when used in specific and limited contexts such as packaging. For example, a particular shade of turquoise used on Heinz baked beans cans can only be used by the Heinz company for that product. In the United States, a trademark for the plumeria scent for sewing thread was registered in 1990. In Europe, they recognize the shape trademark granted to Toblerone, maker of the triangular-shaped chocolate bars. In Australia, sound trademarks are generally acceptable if they can be represented by musical notation.

So a trademark for sound was bound to happen and it has. For example, the International Trademark Association (INTA) recently congratulated and voiced its support for the Indian Trademark Offices recent decision to grant the first sound mark, registered by and for INTA member, Yahoo! Inc., represented by the Indian firm of Anand and Anand. The distinctive yodel of the US internet services company, Yahoo Inc., became the first sound mark to get a certificate of registration from the Trade Marks Registry at New Delhi.

It is an indication of source, INTA said, that is as meaningful as the more widely-known word mark; and the decision reflects the Indian Trademark Offices commitment and leadership in protecting intellectual property.

A sound mark is a non-conventional trademark where sound is used to perform the trademark function of uniquely identifying the commercial origin of products or services. Several examples of sound marks already protected include: the MGM Entertainment Roaring Lion, AT&T -Long Distance Telecommunications' Chime, Mister Softee ice cream trucks' musical jingle, Twentieth Century Fox's drums + trumpets, AAMCO Transmission's " Double A - TOOT TOOT - M C O ", Edgar Rice Burroughs, Inc.'s Tarzan yell, among others.

According to Simran Daryanani, INTAs India representative in Mumbai, We are extremely excited to learn that the Indian Trademark Office has recognized an audible iteration of intellectual property and granted it protected status as a sound markIndia has a thriving economy, and its resourceful and hardworking people are developing new products and services everyday, and we hope that this is only the first in a long list of new protections for Indian brand owners.

Meanwhile, according to an article in managingip.com, the Japan Patent Office is said to be considering the same move when it tackles the next set of amendments to its trademark law. A study committee at the Institute of intellectual property (affiliated with the Ministry of Economy, Trade and Industry) is finalizing a report that is expected to recommend that the law be amended to allow trademarks for sound. Moving images, and color per se.

Because trademarks are an important tool for both brand owners and consumers and protection enables businesses to differentiate their goods in the marketplace and allows consumers to identify products and services as authentic recognizing sound and other non-conventional marks is a big step forward in the increasingly complex intellectual property world.

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