Economic Laws and Requirements for Trademarking

A trademark is a intellectual property right that consists of signs that identify a product subject to trade. A trademark meaning and function can be seen from two angles, it makes it possible for the customer to make a difference between two or more products in the same field, on the other hand it also supports the uniqueness from the owners perspective. What is protected by trademark are the features and the symbols that in some way enables the customer to recognize the product from similar peers. So what can be registered as a trademark is quite broad, as long as it is clear what are the elements that are different from hers. In the European Union a trademark is registered in the entire union by one application for a european trademark. This means there is no need to register it separately in all membership countries. Before 2017 only features that could be presented graphically were allowed as trademarks, however, this condition no longer exists. Nowadays “ any appropriate form” is enough for registration, a appropriate form is “ clear, precise, self-contained, easily accessible, intelligible, durable and objective.” What it comes to the application, no description is required for a sound. It should be submitted in the JPEG MP format.

Like with other things registered as trademark, there are many absolute reasons for registration being denied. Reasons to refusal include the fact that the mark is not distinctive, the entire point with registration. Also if the mark mainly describes the registered product in question, registration can be refused. This also covers when a trademark is applied for something that only describes the products origin, let's say the town it is made in. Also immoral trademarks can be refused, given that they are not in line with public policy or and accepted principles. One interesting ground for refusal is also if the mark registered is deceiving. Another field are the relative ground for refusal of registration. These also of course cover sound. Quite obviously a mark can not be registered if it is to much like an existing trademark and would in that way infringe on it. Also the registration is refused if someone acting for the real propiator, without permission, tries to gain registration in its own name. This would of course lead to that the right no longer belongs to its true owner. So all of these must be considered when discussing the registration of sound as a trademark, which makes this relatively new and special form of trademark even more difficult to understand.

Thereby, generally, the answer to whether sound can be registered as a trademark, is yes. However, it does not mean that it would be as easy other things covered by trademark. For legal purposes it is important to note that there in the legislation does not exist any different sorts of “ trademarks”, something can be protected by trademark if it meets requirements. For pragmatic reasons only,they are split into sub categories in the registration process. So the situation for sound as trademark is now after the reforms in 2017 much better than traditionally. As a matter of fact, it took tens of years for sound to even in theory be considered registerable as a trademark in the EU. Still today some challenges remain compared to other things that are registered. Trademarks are much about the average consumer, and it is not quite easy to argument that a sound would be distinguable for the average consumer, since the world is filled with sund and we are always surrounded by different sounds. On the other hand, if the sound submitted for registration is to long, then there might be the problem that it is to long to enable a consumer to make a difference between similar products. Given that the current EU rules are rather young, it is likely that new cases and decision will make it the future clearre about the rules around sound as trademark.

Like with many sorts of IP, the right is not only protected for economic reasons, but also for recognition, meaning that it would not be morally the right thing that someone else can claim fame and recognition for the work.That is why the rights are split to moral and economic rights. To simplify it could be said that economic rights of copyright are the rights that grant the creator of a work the right to financially benefit from it. However, the moral and economic right of copyright do not exist in vacuum, since breaching one of them often means that the other one is neither respected. And of course, it could also be seen that gaining some financial benefit is also a sign of moral rights being respected. Also there is the difference that generally the economic rights can be sold and transferred, while the moral ones always remain with the author. Copyright is sometimes described as a “ negative right”, meaning that the holder can not only allow but to prevent others from using what is covered by the copyright, since it is invented by the owner ( or by someone who later on sold the copyright).

However, now, important to note for the economic purposes is that only the idea behind a work can be subject to copyright. To put in practise, if someone takes a photograph of a dog, this photograph is protected by copyright and owned by the photographer. The photographer can then limit other from using the photograph, or allow if wants so. But, if i was to think the dog looks nice, and find the same dog and take a very similar photograph of it, looking exactly the same, it is not breach of the copyright. So if a work protected by copyright becomes economically very valuable, there might be ways to get around it, and then also avoid paying what the copyright holder would like to be paid. Of course, in major cases, likely to be subject to argument.