| The development of social productivity and technological progress hasbrought rapid changes in commercial activities. In the field of trademarks,conventional graphic designs couldn’t have met the needs. With the emergenceof non-conventional trademarks including sound mark, scent mark, color markand3D mark and so on, the development of trademark is showing a new trendfrom static to dynamic, from the visual to the expansion of the different sensesof hearing, smell and taste and so on. Sound mark, by virtue of its special formof expression, giving relevant consumers a powerful sensory stimulation, isbecoming another equally important form that can indicate the source of goodsor services.On March28th2006, The WIPO Member States held the SingaporeTrademark Law Treaty Diplomatic Conference in Singapore and approved theSingapore Treaty on the Law of Trademarks. The Treaty extended the protectedmatters under Trademark Law to non-conventional trademarks including sound,scent, and colors and so on. Sound mark and other non-conventional marks are explicitly recognized in international treaties for the first time. It marks that thesound mark legislation enters a new stage. At the present, there are38countries’Office accepting the musical sound to be registered as trademark and28countries’ Office accepting non-musical sound to be applied for registration.Theexploitation and protection of sound mark becomes an important issue for manycountries’ Trademark Law.Sound mark, a type of non-conventional trademarks, which is used byproducers in the goods or services to distinguish the source of the goods orservices, comprises music or a particular sound.Reviewing the theory oftrademark by its nature, sound mark, with its distinctiveness andnon-functionality, can also be registered. But due to various technical problems,sound mark has not been given legal protection under Trademark Law by all thecountries and regions. For the same reason, at the present China’s TrademarkLaw doesn’t protect sound mark also. In fact, sound mark has penetrated intoreal business practices in Chinese enterprises and people’s daily life. Moreover, with the technology development and social progress, all kinds of technicalproblems about legal protection of sound mark can be overcome.This article relates the feasibility and necessity of the protection of soundmark, and systematically analyses the legislation cases concerning about soundmark in some typical countries and regions from the perspective of comparativelaw. Basing upon this, the writer elaborates on the basic elements of soundmark’s protection in terms of distinctive element, non-functional element, andprocedural element. At the same time, the article offers a further discussion onprocedural element of applying the sound mark, and finally proposes a specificstandard on sound mark’ s significant judgment, the pattern description, thesimilarity judgment and infringement and so on. On the occasion of the Thirdrevision of Trademark Law, the writer puts a number of legislative proposals onsound mark’s legal protection, and hopes that China’s new Trademark Law canabsorb the advanced experience of other countries and regions to explicitly putsound mark in the scope of protection so that China’s Trademark Law can conform to the practical needs of the economic life of trademark practice andtrademark legislation of international trends. |
