Examination criteria for sound marks defined

China

Following the clarification of the filing requirements, the Chinese Trademark Office has defined the examination criteria of sound marks in China, as follows:

  • Certain sounds are prohibited from being used and registered as trademarks. These include sounds that are identical or similar to the national anthem of China or other countries, and sounds that have an adverse influence (eg, those promoting religion, terror or violence).
     
  • The distinctiveness of sound marks is normally acquired through extensive use. Applicants may submit evidence of use to establish acquired distinctiveness, on request by the Trademark Office during substantive examination.
  • The following sounds are considered to be devoid of distinctive character:
     
    • a sound that directly describes the features, target consumers or other characteristics of the designated goods or services (eg, the sound of piano playing in connection with musical instruments or the sound of children laughing in connection with milk powder for babies);
    • a simple and ordinary tone or melody;
    • a complete or lengthy piece of music or song;
    • an ordinary slogan expressed in ordinary human tones; and
    • a sound or piece of music that is commonly used in the industry.
       
  • In principle, the similarity of sound marks is examined by comparing the sound mark samples. If a sound mark, in comparison with another sound mark or another graphically represented mark (eg, a word mark), is likely to cause consumer confusion or a mistaken belief that the two are related, similarity is established. For instance, a sound mark named “a good neighbour” would be considered similar to the word mark A GOOD NEIGHBOUR.

Annie Tsoi, Wilkinson & Grist, Hong Kong

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