A sound mark is a registration type that uses sound as the trademark—for example, a brand's startup tone, advertising jingle, or store prompt sound. The 2013 amendment to the Trademark Law brought sound into the statutory registrable elements, and the radio opening fanfare of China National Radio became the first approved registered sound mark. Sound cannot be presented graphically and must be described by musical score or words, which determines its unique application and examination rules.
Legal Basis
Article 8 of the Trademark Law provides that any sign capable of distinguishing the goods of a natural person, legal person, or other organization from those of others—including words, devices, letters, numerals, three-dimensional signs, color combinations, and sound, as well as combinations of these elements—may be applied for registration as a trademark.
Article 11 provides that signs lacking distinctive features may not be registered as trademarks; signs consisting solely of elements dictated by the nature of the goods themselves, necessary to obtain a technical effect, or that give the goods substantial value are likewise restricted. Whether a sound mark can be registered ultimately turns on the assessment of distinctive character.
Representation and Audio Sample Requirements
Under Article 13 of the Implementing Regulations, an application to register a sound mark shall declare this in the application, submit a sound sample meeting the requirements, describe the sound mark applied for, and explain the manner of use of the trademark; the description of the trademark and the sound sample must be consistent. Practical points:
- Manner of description: where the sound can be represented in staff notation or numbered musical notation, attach the score with a textual explanation; where it cannot, describe it accurately in words or other means;
- Sound sample: submit a file in a common audio format, whose content must be consistent with the description;
- Manner of use: explain where and how the sound is played—for example, at startup, in the opening of an advertisement, or in store broadcasts.
Assessment of Distinctive Character
- Situations readily approved: original melodies or sound effects without functional connection to the goods or services, capable of pointing directly to source;
- Situations difficult to approve: natural sounds made by the goods themselves, generic prompt sounds of the trade, or overly simple or common single tones are usually found lacking in distinctive features;
- Distinctiveness acquired through use: a sound originally lacking distinctive features may be approved where long-term, extensive, and continuous use has enabled the relevant public to identify the source by it, but large amounts of evidence must be submitted on advertising placement, dissemination reach, and market recognition.
Distinction from Neighboring Concepts
The subject matter of a sound mark differs from the copyright in a musical work: copyright protects the creative expression of the melody itself and usually arises upon completion of the work; a sound mark protects the correspondence between the sound and the source of particular goods or services, requires registration and distinctive features. The same passage of sound may enjoy both protections simultaneously, but the rights bases, terms, and remedial paths differ.
Practical Tips
Examination standards for sound marks are strict, the total number of approvals is limited, and several well-known sound marks went through refusal review and even administrative litigation before being approved. Small and medium-sized enterprises need not make sound marks a primary layout—word and device trademarks are safer priorities; where genuinely distinctive sound assets have formed recognition in the market, they can be added as a supplementary layout, with use and dissemination evidence organized systematically before filing.
The application of these concepts in practice varies in detail; before proceeding, you may consult a registered agent via MyTMBee for targeted analysis.