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SOUND MARKS Defining the scope of protection Jens Herman Ruge Legal adviser, Design- and Trademark Department E-mail: firstname.lastname@example.org Alicante 2008
LEGAL FRAMEWORK (1) • Norwegian Trademark Act Section 1: • A trademark may consist of any sign which is capable of distinguishing the goods or services of one establishment from those of others, and which is capable of being represented graphically… • Corresponds to Section 2 of the First Directive 89/104/EEC • A trade mark may consist of any sign capable of being represented graphically…provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.
LEGAL FRAMEWORK (2) • Norwegian Trademark Regulations Section 3(6), pursuant to Trademark Act Section 17: • If the application concerns other type of marks, for example a sound mark, scent mark or mark consisting of colours or combinations of colours, the Patent Office may require a description of the mark and possibly a sample of the mark stored on a suitable medium. The Patent Office may give further guidelines for transmission, formats of storage, etc.
WHAT CONSTITUTES A SOUND MARK? • Graphical representation of a sound: ”any sign capable of being represented graphically.” This means that it is the graphical representation which constitutes the trade mark. • How to see a sound? • Will the examiner know what to examine? • Will a third party know when he infringes? • Will the proprietor know what he owns?
EXAMPLES OF SOUND MARKS • The mark consists of a musikal piece which contains different layers og musikal notes. The main layer contains of D#, G#, D#, A#, and the whole piece consists of four accoustic layers (in two octaves), six double synth layers, a production layer, a layer of buzzing sound, a bell layer and a bass layer, as shown in the score. The piece is in a 4/4 beat and lasts for about three seconds.
EXAMPLES OF SOUND MARKS • The sound mark is an sequence of chords played for about 8 seconds on an electrical Wurlizer Piano. About in the middle there is a guitar-like ”riff”, also played on an electrical WurlizerPiano. The sound mark har a somewhat distorted sound and contains some tremolo. Descriptive of the mood and sound, is also the sound of an old vinyl record. The genre of the sound mark is typical seventies R&B/soul music.
User friendly? • Dilemma: The applicant wants protection for the sound mark per se, we grant protection for the look of it. • Our solution: We require a description of the sound in a note sequence • And a written description of the mark • In addition, the actual sound mark must be submitted in the MP3 format.
PRACTICAL AND LEGAL ISSUES • With electronic publication, there is no technical hindrance for publication of the sound per se. • In order to define the sound mark by the sound itself, the directive must allow other than graphical representation. • Do other countries share our and our customers wish for a change?