Sound trademark has been acknowledged and protected by law in many developed countries such as the United States, Japan, the EU, v.v. Under intellectual property law of these countries, detailed guidelines and regulations are set out
According to WIPO, a sound trademark may include: sounds that are music, which may be pre-existing, or newly composed for trademark purposes, or sounds that are not music existing in nature or sounds produced by man-made devices, machines or means.
In the US, registrable sound trademarks must be distinctive, arbitrary, unique and can create an impression on the customers of the trade source of the goods or services in relation to which it is used. Sound marks in EU are defined as a trade mark consisting exclusively of a sound or combination of sounds.
As Vietnam is integrating in the global trend, The office of the National Assembly has approved of the protection of sound marks as trademarks in the latest amendments of Intellectual Property Law on 16/06/2022. This is an important milestone for more future detailed regulations and development relating to intellectual property protection in Vietnam.
I. Criteria for registration
Provided for in Article 72 of the amended Intellectual property law, criteria for registrable sound trademarks include:
(1) be represented graphically
(2) has distinctive character that differentiate the mark owners’ goods and services from others
Regarding the mark sample in the application form, pursuant to the amendment to Article 105 of Intellectual Property Law, in case of a sound mark, the mark sample must be submitted as an audio file and an accurate graphic representation of the sound.
II. Sound not protected as marks
Aside from the sound not satisfying the registration criteria, as set out in the amendment to clause 1 Article 73 of Intellectual Property Law, sounds that are identical or confusingly similar to Vietnam’s national anthem or that of other countries or international anthem shall not be protected.
Provided for in clause 2 Article 3 of Law amending and supplementing a number of articles of the Intellectual Property law 2022, provisions relating to the protection of sound trademark shall be effective as from 14 January 2023.
IV. Legal complications
Apparently, despite having taken a step to recognize the protection of sound trademark, which is revolutionary, Vietnamese regulations regarding this matter are still ambiguous and lacking. As a result, many legal complications may arise, namely, possible copyright infringement or complications in the registration proceeding due to sound trademarks’ unique and complicated nature.
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