Can Sound or Smell be registered as Trademarks in China?

—the introduction to the registerable trademarks in China

By You Yunting

As a news report (note: the link is in Chinese), Apple applied the trademark protection for the start up sound of its Mac in USA and Europe. The protection of sound trademark is on the front of the theory research, and in many situations, the sound is protected through copyright law. So far, to register the sound as mark in China is of no legal ground. Meanwhile, in the latest revision of the Chinese Trademark Law, we notice the suggestions to add sound as legal sort of trademark, which was objected by some experts. According to the schedule of the legislation in China, the latest Trademark Law could be issued in this October as soonest, and then we could find the answer to proposal. Today, we will introduce you the sorts of trademarks to be applied in China.

Article 15 of TRIPS:

1. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

As the country acceded to the treaty, China also specifies the applicable trademark sorts in her legislation, and mostly in Article 8 of the Trademark Law:

“In respect of any visual sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colors, and their combination, an application may be filed for registration.”

And the illustration of each trademark sort is as follows:

I. The two-dimensional trademark

The two dimensional trademark is the most fundamental form of the mark, and could be displayed as texts, pictures or the combination of both. The word trademark is the most common one among all the trademarks, and in China it might be expressed in local language or any foreign ones. Such trademarks could also be independently developed by the business operator, e.g. SONY, NIKON, or to quote the used words or phrases, Yet, under Chinese Trademark Law, such common vocabulary could not be used in the fields connecting to it, like Apple for fruit business.

From this aspect, the word trademark could be divided into self-developed trademark, implied trademark or descriptive trademark. However, some elements in the mark texts will be restricted to some extent and could not be registered or used as the mark, unless it has been specialized and will not hinder other’s using of it.

There’s a wide range of pictures constituting marks, nearly all the geometric figure or natural sights or other pictures could be used as marks. Compared to works, the picture appears to more vivid and clearly in meaning, and thereby more delightful in addition to the function of distinguishable. But the pictures are disadvantaged in spread through talks, and that makes most picture marks combined with words.

II. The 3-dimensional trademark

The 3-dimensional trademark is fairly new, but it appears to be more lively, direct and attractive visually.

Originally, no 3-dimensional trademark could be applied as marks by Chinese laws and regulations. And generally it could be protected by design in Patent Law and special signs of noted commodity in Anti-unfair Competition Law. But as revised in 2001, the Trademark Law then added the articles on the registration and protection of 3-dimensional marks. But it’s shall be noticed that not all the 3-dimensional marks could be registered as trademarks. As provided in Article 12 of the existing Trademark Law.

“Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered. ”

Ferrero, a reputed Italian brand, owns the first 3-dimensional trademark in China (note: the link is in Chinese) in 2007.

III. The color trademark

The color trademark refers to the marks combined or listed with two or more colors, but it generally excludes the situation of a sole color in the mark (but there are countries protecting the single color trademark). And on the other side, the mark consisted with common words, picture and color does not belong to the color trademark, for it’s a picture trademark after all. The color is visually visible, and the combination of the color is distinguishable itself, like the McDonald’s restaurant, it uses not only the words but the combination of red and yellow, which has visual impact. But the color trademark does have its own difficulty, like either the color itself or the color printed on the product could not be registered as the trademark; furthermore, the color is limited in amounts, once it’s permitted to be used as marks, other business runner may not properly use the color on their products for the demand of color difference. But the color difference is not easy to be recognized and could not play a direct role in distinguishing undertakings. So, the color could only be used for marks when they are distinctive though uses and then could be registered as marks.

IV. Other marks

In addition to the said marks, the distinctive signs reminding people of specific articles include sound and smell. But they are only protected in few countries around world, and by Article 15 of TRIPS, the acceded country “could” rather than “should” add them to the list of resistible marks. So, they are both not on the list of the marks to be registered by law.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

Lawyer Contacts

You Yunting


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