With the implementation of revised trademark treaty, the requirement that a trademark must be able to be represented graphically was abandoned. This has opened the door to new sorts of trademarks. Think of movie clips, animated images, position marks and of course sound marks. Before that, a melody could only be claimed as a mark, if the melody could be represented in a music-staff. Now that this new legislation is in place, a soundmark may also be submitted as an MP3 file. However, not every application is accepted, as Ardagh learned.
Is the sound of opening a canned soft drink, followed by a few moments of silence and then the sound of sparkling water acceptable as a trademark? The answer is no; the consumer does not recognize a trademark in this. They simply hear the usual (functional) sound of a can opening and the fizz of carbon dioxide.
For soft drinks, this cannot be a trademark. This sound mark does not meet the requirement of distinctiveness. Note that a soundmark no longer has to deviate significantly from a natural reproduction. The key is whether the consumer recognizes a trademark in the sound. soundmarks such as the 20th Century Fox tune or the roaring MGM lion de meet this requirement.
trademark-registration
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