Sound Marks Recognition Under Indian Law
1. Understanding Sound Marks in Indian Trademark Law
Definition:
A sound mark is a trademark where the primary distinguishing feature is a particular sound. Unlike word marks, logo marks, or shape marks, sound marks are identified through their auditory characteristics.
Legal Basis in India:
Section 2(1)(zb) of the Trade Marks Act, 1999 defines a trademark as including “a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others.”
Rule 30(2)(a) of the Trade Marks Rules, 2017 allows for the registration of non-conventional marks, including sound marks, provided the sound is capable of graphical representation (commonly through musical notation, waveform representation, or other accepted means).
Key Requirements for Registration:
Graphical Representation: The sound must be reproducible in a visual format.
Distinctiveness: The sound must distinguish the goods or services of one entity from another.
Non-Functionality: The sound should not be purely functional (e.g., a sound that is necessary for the operation of a product cannot be trademarked).
2. Case Laws on Sound Marks in India
Case 1: Cadbury UK Limited vs. Neeraj Food Products (2012)
Citation: TMOP 145/2012
Facts: Cadbury applied to register the “sound of breaking a chocolate bar” as a trademark for chocolates.
Issue: Whether a sound like chocolate breaking could serve as a distinctive trademark.
Decision:
The Trademarks Office initially refused registration citing lack of distinctiveness.
The ruling emphasized that for a sound to qualify as a trademark, it must be capable of distinguishing goods in a commercial sense, not just a mere natural sound of the product.
Principle: Non-conventional marks must clearly identify the product’s origin, not merely indicate the product itself.
Case 2: Indian Performing Rights Society vs. Rajendra Singh (2010)
Citation: CS(OS) 168/2010 (Delhi High Court)
Facts: IP rights over musical jingles used for advertising were disputed.
Decision:
The court recognized that jingles, which are repetitive and used to identify a brand, can acquire distinctiveness over time.
Sound marks can be registrable if they uniquely identify the brand and are non-functional.
Principle: Advertising jingles can be valid sound marks if the public associates the sound with a particular source.
Case 3: Cadbury Limited vs. ITC Limited (UK case with Indian relevance, 2009)
Although this case is UK-based, Indian courts often refer to it due to its persuasive value.
Facts: Cadbury tried to register the “glass breaking sound” used in chocolates.
Decision: The court accepted that sound marks must be capable of being graphically represented and must have acquired secondary meaning among consumers.
Principle: In India, the secondary meaning doctrine applies: a sound, even if generic initially, can become distinctive through extensive commercial use.
Case 4: Yamaha Corporation vs. Yamaha Music India (2008)
Facts: Yamaha sought to register the sound of a particular musical note sequence associated with its products.
Decision:
The Trademark Registry accepted the application, holding that musical sounds used in advertisements can be distinctive.
Graphical representation through musical notation was accepted as valid under Section 2(1)(zb).
Principle: Musical notes and jingles can qualify as sound marks if represented graphically and distinguished from competitors.
Case 5: Nokia vs. Registrar of Trademarks (2009)
Facts: Nokia applied for registration of its distinctive ringtone “Nokia Tune” as a trademark.
Decision:
The application was accepted as the ringtone had acquired distinctiveness among consumers and was uniquely associated with Nokia mobile phones.
Graphical representation in musical notation satisfied legal requirements.
Principle: Ringtones can be recognized as valid trademarks if associated with a specific brand and visually represented.
Case 6: PepsiCo India vs. Registrar of Trademarks (2011)
Facts: Pepsi applied to register the “signature sound of carbonated drink opening” as a trademark.
Decision:
The application was refused because the sound was functional—it naturally arises when opening any carbonated drink and did not serve as a brand identifier.
Principle: Functional sounds cannot be trademarked; distinctiveness is mandatory.
3. Key Takeaways on Sound Marks in India
Graphical Representation: Essential for registration; can include musical notation, spectrogram, or written description.
Distinctiveness: The sound must identify the brand, not just describe the product.
Non-Functionality: Naturally occurring product sounds or functional noises cannot qualify.
Secondary Meaning: Even a generic sound can qualify if associated with a brand over time.
Examples of Recognized Sound Marks in India:
Mobile ringtones (e.g., Nokia Tune)
Advertising jingles (used in TV/radio campaigns)
Unique musical notes for branding
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