A Study on Sound Mark

• Main Authors: Yi-Shan Su, 蘇以杉
• Other Authors: 蔡明誠
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/60824412859793493024

碩士 === 國立臺灣大學 === 法律學研究所 === 102 === Sound mark is the strategic use of sound to create an authentic auditory identity for the brand. It’s one of the unconventional marks, and can be categorized under musical and nonmusical sound marks. The role of audio branding in Taiwan compared with other unconventional marks has been greatly undervalued since the recognition of sound as a trademark in 2003. This is due to the fact that the distinctiveness of sound is hard to value and that for decades visual identity, whether in the form of a logo or a color scheme, has been the focus of both brand owners and their agencies, while sound has been viewed primarily as decorative or background music. As we enter an era of fast information and constant sensory evolution, however; it’s necessary to find a new way of building a consistent approach to brand communication if the industry wants to stand out from its competitors and attract consumers’ attention. Therefore, this paper examines the protection for sound mark under international treaties and law enforcement by examining selected case studies drawn from different countries. Despite the fact that sound has been recognized as a trademark by many countries, questions have arisen about whether its criteria for the registration, distinctiveness and test for dilution be somewhat different from those applied to the average trademark. When it comes to the application of sound, the issue of functionality and the question of whether sounds can be represented in an objective and precise way is the main concern since sound mark is not visually perceptible. Sound marks have been protected in Europe since the Shield Mark case which established a strict graphical requirement, thereby causing nonmusical sounds unable to be represented graphically and would never get registration under the Europe system. On the other hand, the United States adopted a system that is fully based on Mp3 records of the mark so as to alleviate the strictness of graphical representation in EU system, but the aural interpretation of sound arguably differs according to the listener. Taiwan uses a mixture of the two systems. The fact that the register standard of sound varies from country to country raises concerns over how to soundly and genuinely implement the protection of sound marks. Moreover, sounds are usually accompanied with commercial images which give rise to different theories on whether sound is inherently distinct, since most sounds in Taiwan are required to achieve secondary meaning to demonstrate their distinctiveness. The paper goes on to analyze the style of the sound performed and whether or not it may have an impact on consumers’ recognition towards the brand. It then gives an overview of the trademark dilution theories applied to sound marks. The final section of the paper addresses the interaction between trademark law and copyright law (including musical, literal and audio recording copyright) in sound marks, in order to provide more comprehensive information on the protection of sound marks. Finally, this dissertation will conclude with research findings and suggestions to serve as references for practical uses and evaluation of trade marks in the future.