Definition : Sound mark


A sound mark is a trade mark consisting exclusively of a sound or a combination of sounds, whether a melody, a jingle, a noise or a sequence of notes. Article L. 711-1 of the French Intellectual Property Code lists sounds among the signs capable of constituting a trade mark, and Article 4 of Regulation (EU) 2017/1001 does the same. Its representation on the register was for a long time the major obstacle, removed by Directive (EU) 2015/2436, which abolished the requirement of graphic representation in favour of a clear and precise representation by any appropriate means.

Representation of the sign

Before the reform, a sound mark could be filed only by means of a musical stave, and a noise that could not be transcribed, a roar or the sound of an engine, escaped all protection. The current texts allow the filing of an audio file, alone or accompanied by musical notation, provided the representation enables anyone to determine precisely and clearly the subject matter of the protection. INPI and the EUIPO thus accept the common electronic formats and refuse purely verbal descriptions, such as “the sound of a champagne cork”, which do not delimit the sign with the required certainty.

The distinctive character of the sound

A sound is a trade mark only if the public perceives it as an indication of origin and not as a mere functional, decorative or ambient element. Distinctive character is assessed by the same criteria as for other categories of sign, but the consumer’s perception is not identical, since the public is not in the habit of recognising the origin of a product from a sound. A very short or commonplace sequence of notes, or one too long to be remembered, is refused, as is a sound inherent in the product, for instance the sound of a can opening for beverages. A sound that has accompanied an advertisement for years may, on the other hand, establish distinctiveness acquired through use.

Exploitation and defence of the right

The owner must make genuine use of the sound as a trade mark, in communications, when an application opens, when a device starts up or at the end of an advertising message, to escape revocation after five years. Infringement is assessed by the aural comparison of the signs, taking into account rhythm, melody and duration. An original sound is also a musical work, and filing it as a trade mark does not dispense with acquiring the composer’s copyright, without which the owner of the mark does not control the work it exploits.

Key points

A sound may constitute a trade mark provided it is represented by an audio file or a precise notation and is perceived as an indication of origin. Short, commonplace or product-related sounds are refused, whereas a sound sign established through advertising may be protected. File the sound as an audio file, settle the copyright question with its composer and document the use of the sound as a trade mark from launch.

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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