What is real
is not external form.”
Every business seeks recognition through a distinctive element that would help them attain a superior position in their consumers’ mind. Such a distinctive element can take the form of a sound which can be complex, such as the sounds produced by different musical instruments, or a simple sound, such as mechanical sounds. Whether the sound in question is complex or simple, it is vital that the sound fully represents the business by conveying the objectives, values and principles of the organisation or business.
What are the IP implications?
The registration of a hearing mark involves a few steps. First, the auditory mark must contain a graphic representation of the mark. Thus, the mark can take the form of a wordmark which allows the description of the sounds that are heard in words, for example: “CLING, CLING, CLING”.
It is worth noting that the musical notation of a short musical fragment can be registered as a trademark. However, the recording of a score of an entire piece cannot be registered as an auditory trademark. Verbal representation of the trademark constitutes only one of the requirements. A company must also provide additional information on the version claimed as the trademark. For example: “A sound made with a bell, repeated three times.”
Recorded sound can also be divided into two categories. “Functional” sounds constitute the first category and are sounds produced by the normal use of equipment. The second category is represented by sounds that are not typically recognised in terms of commercial goods or services. The latter category of sounds forms a distinctive group that can remain in the mind of the consumer, thereby allowing the differentiation of the respective brand from its main competitors.
A common feature of functional sounds is their generality. For instance, the sound produced by hitting a set of chains may be claimed by several businesses as the sound that represents their brand, but none of these companies will differ from others that use the same sound as a brand. Therefore, for this sound to be registered as a separate mark, an applicant must provide evidence demonstrating how the mark distinguishes the goods or services offered by them from other similar goods or services of the main competitors.
Are there other types of brands to which the same principles apply?
It is worth noting that hearing aids are not the only items that fall into the category of non-traditional brands. Another example of non-traditional brands are those that designate smells, but this is a topic that will be treated separately, as this category also involves certain unique aspects, which applicants must consider when seeking to gain intellectual property rights.
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