Sound marks
They have become an integral part of advertising: sounds that we automatically associate with the corresponding goods or services. Unlike normal image advertising, sounds affect our sense of hearing and thus strengthen our perception. Examples include the “Ricola” jingle and the “Tüdeldüdü” jingle used by Telekom. These sounds are already registered as sound marks with the German Patent and Trademark Office. Section 3 (1) of the German Trademark Act lists all signs that are eligible for trademark protection, including sound marks: “All signs, in particular […] sounds […] that are capable of distinguishing the goods or services of one company from those of other companies, can be protected as trademarks.” The sound mark has replaced the audio mark.
What is permitted?
In principle, all perceptible sounds are eligible for registration, i.e., not only musical sounds, but also spoken or sung words and purely noiseless sound images. However, there are exceptions to every rule, meaning that absolute grounds for refusal must also be taken into account for sound marks. The best-known absolute ground for refusal is lack of distinctiveness (Section 8(2)(1) of the German Trademark Act (MarkenG)), i.e. if the sound is not capable of distinguishing the goods or services of one company from those of other companies. This also means that purely descriptive information is never eligible for protection (Section 8 (2) No. 2 MarkenG). This applies in all cases and to all types of trademarks. In the case of sound marks, for example, the simple meowing of a cat cannot be protected for cat food. However, there is another special case to consider with sound marks: sounds that are inevitably produced by the goods or services, i.e., that are necessary to achieve the technical effect, cannot be protected (Section 3 (2) No. 2 MarkenG). This excludes, for example, the technically unavoidable noise of a printer.
Presentation of your sound as an mp3 file OR graphically
In order to ensure that the application is formally correct, either a graphic representation in standard musical notation on paper/JPEG file can be attached, § 11 (1), (2) MarkenV. Standard musical notation refers to a structured stave, i.e., with clef, note and rest symbols, and any necessary accidentals. Or, instead of the graphic method, a more contemporary approach: representation on a data carrier as an mp3 file. In this case, the graphic representation is no longer necessary. This is particularly practical for sounds that cannot necessarily be represented graphically.
Alternative (!) to the mp3 file: The graphic representation of your sound mark
If you still prefer the graphic representation, there are a few formalities to observe (Section 11 (3), Section 8 (2)-(6) MarkenV): Overlays or crossings-out that may be obstructive, as well as non-permanent color representations, are not permitted (Section 8 (2) MarkenV). The German Patent and Trademark Office has a form for the representation of the trademark, which must be enclosed with the application and on which the representation of the trademark must be printed or affixed. There are precise dimensions that must be adhered to for the representation: no smaller than 8 cm in width or 8 cm in height. Nothing else may be included in the field except, if necessary, the note “top” to indicate the correct position (Section 8 (3), (5) MarkenV). If you do not wish to use this form, you must use A4 paper, in which case the area used for the representation must not be larger than 26.2 cm x 17 cm and also not smaller than 8 cm in width or 8 cm in height. This sheet must be printed on one side only, and a margin of at least 2.5 cm must be left at the top and left-hand edge of each sheet (Section 8 (4) MarkenV).
Sound marks are the only type of trademark that are not perceived visually, which gives them a unique selling point and can greatly boost the marketing of your goods or services. We would be happy to advise and assist you with the registration process.
Franziska Becker
