Safeguarding non traditional Trademarks – an Analysis of Sound Marks

Safeguarding non traditional Trademarks – an Analysis of Sound Marks

In a world where brands speak through sound, this paper explores India’s journey toward protecting auditory trademarks. It analyzes case laws, distinctiveness, and representation challenges while calling for reform to align Indian trademark law with global trends shaping the future of multi-sensory brand identity.

ABSTRACT

As intellectual property rights continue to evolve, sound has become a formidable medium of brand identity, extending the trademark legal protections for brands beyond visuals. Sound marks such as jingles, tones, or musical arrangements that serve to identify featured goods or services represent a remarkable divergence in how consumers identify and relate to brands. This paper will examine, firstly, the recognition and protection of sound marks as a phenomenon; and secondly, the resulting challenges and policies for protecting sound marks in India - in a comparative and international context.

In recent developments, this paper recounts how trademark protection has moved away from conventional categories of trademarks to non-traditional categories of trademarks, as well as how the Trade Marks Rules, 2017 (especially Rule 26(5), (6) & (7)) allowed for the registration of sound marks in the format of MP3 files that incorporated musical notation. This amendment to trademark law will bring India in line with customary international law as articulated in the TRIPS Agreement and previous WIPO guidelines which both recognize sound marks as protectable marks, so long as sound marks are distinguishable as a work, and adequately represented.

Further through the analysis of key court cases such as Shield Mark BV v. Joost Kist (EU), the Harley-Davidson sound ruling (U.S.), and India’s first registered sound mark the Yahoo! Yodel the paper recognizes persistent issues surrounding inherent distinctiveness, graphic representation, and functionality as Indian law is still an innovative terrain, and it has always faced systematic and interpretational hurdles impeding registration for complex and/or AI generated sound marks.

In addition, it illustrates the burgeoning commercial relevance of sonic branding in India via marks like ICICI Bank's jingle and “Ting-Ting-Ting” from Britannia. The study concludes with the assertion that sound protection will require some innovation in legal frameworks, examiner education, and harmony between trademark and copyright principles. In sum, this analysis places sound marks as the future of trademark distinctiveness in an immersive digital marketplace, advancing the recommendation for India’s legal system to move towards a multi-sensory trademark category and adapt to global historical trends and technology.

KEY WORDS - Sound Marks, Non - Traditional marks, Auditory Branding, Distinctiveness, Brand Identity, Functionality, Graphical Representation , Trademark Law

INTRODUCTION

Traditionally, trademarks utilized visual representations like words, logos, colors, and packaging to reveal the commercial source of goods and services. Non-conventional marks, such as sounds, scents or movements, experienced resistance because trademark registers would require some graphics to reproduce, and examiners struggled to assess intangible signs.

But the digital age has changed branding. The globalisation of trade and multi-media branding has intensified the recognition that auditory signals are important to branding. As demonstrated by global corporations such as Netflix ("Tudum" intro), Intel (the five-note jingle), Nokia (the ringtone), and McDonald's ("I'm Lovin' It" jingle), a simple series of notes can, in essence, can represent a represent a brand without using words or visuals. Legal systems began to recognize sound marks over time. In India, sound marks remained unrecognized for a time, especially since the Trade Marks Act 1999 adopts a broad definition of "mark" but places emphasis on visual representation. This changed with the 2017 Trade Marks Rules, which permitted applicants to upload an MP3 file in addition to a graphic representation as evidence, indicating an institutional shift to assess sensory marks. This recognition started with Yahoo yodel (registered in 2008) and ICICI Bank's jingle "Dhan Dhan Dhan" (registered in 2011).

The acceptance of sound marks in India follows a trend that is similar globally. The Yahoo yodel was the first sound mark registered in the country; the examiners found it to be distinctive because the model had acquired distinctiveness in global use and recognition. The 2017 Rules codified the procedural requirements as Rule 26(5) provides that a sound mark can be filed as an MP3 of no longer than 30 seconds, with a graphical representation of its musical notation. The rules have opened the doors for other applicants, such as Nokia's tune and ICICI Bank's jingle, but registration practices remain inconsistent.

OBJECTIVES

1. To examine the evolution and existing legal frameworks for sound marks in India.
2. To evaluate the influence of international benchmarks, specifically, TRIPS, the EU, and the U.S. on Indian trademark practice.
3. To identify the important issues surrounding distinctiveness, representation, and enforcement of sound marks.
4. To propose reforms for the recognition and regulation of auditory non-traditional trademarks.

QUESTIONS

1. How well do sound markings get recognized and protected under Indian trademark law following the 2017 amendments?
2. What sound mark-related lessons may India learn from the US and EU systems?
3. ⁠What are the most significant challenges regarding distinctiveness and functionality issues in auditory branding?
4. How can India enhance its procedural and policy framework to adapt to developing technologies such as AI-created sounds?

LEGAL FRAMEWORK

International Framework –

• Article 15 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement states that all signs capable of distinguishing the goods or services of one enterprise from those of others may constitute a trademark.
• The member states usually prefer the signs to be visually perceptible, but the provision also allows for sound marks by implication, since sound marks can also distinguish goods or services.
• Global organizations, such as WIPO, take the same stand on sound marks and permit their representation by way of musical notation, descriptions, or audio recordings, as long as the depiction is clear and precise. This flexibility promotes the global recognition of non-traditional trademarks across borders.

Indian Framework –

• The Trade Marks Act of 1999 describes a mark as a brand, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or a combination of colours. The act, however, is silent on sound; moreover, the usual Indian practice regarding trade mark has been visual representation of the mark.
• This practice underwent a significant change with the introduction of Rule 26(5) of the Trade Marks Rules in 2017 which specifically recognises sound marks. Under this rule, the applicant shall submit the sound in MP3 format of not more than 30 seconds, with a graphical representation of the notation of the music. Additionally, rule 2(1)(k) states that the graphical representation can be either on paper or digital media.
• Sound marks can now be registered with the Trade Marks Office, provided that the mark is distinctive and non-functional. An examiner will determine whether the sound has acquired secondary meaning through use or it is inherently distinctive.

Comparative Insight –

• The US law does not need sound markings, but applicants must provide a full description of the sound and an audio file (MP3 or WAV) of up to five megabytes. The description must be sufficient to define the sound and indicate the context in which trademark protection is applied. The United States has registered numerous sound marks, such as the NBC three-tone chimes and the MGM lion roar, demonstrating that uniqueness can be achieved when a sound is distinct and associated with a business.
• In contrast, EU law has generally demanded a graphical depiction. But Regulation 2017/1001 no longer requires graphic representation of signs, allowing authorities and individuals to identify the subject matter through other ways, such as sound files like MP3. This has liberalised the registration of non-traditional trademarks, despite the requirement that the representation be clear, precise, self-contained, and accessible.

CASE LAWS AND PRECEDENTS

1. Representation

In the below case the court has dealt with the representation part of the sound marks i.e if the sound can be appropriately and distinctly depicted for registration — for example, by way of music notation, MP3s, etc.

• In the case of Shield Mark BV v. Joost Kist , the European Court of Justice accepted the idea that sounds could be trademarks, provided that they could distinguish the products or services and were capable of being represented in a graphic form.
• The court ruled that musical notation on a staff meets the requirements for being clear and precise, while representations based solely on written descriptions or onomatopoeia may not.
• This important ruling of the European Court of Justice in Shield Mark BV v. Joost Kist affirmed that sounds can constitute trademarks if they are capable of graphical representation that is clear, precise, and easily accessible.
• Moreover, This decision allowed the European Union to ease the graphical representation requirement, which then influenced India to adopt Rule 26(5) in 2017 to allow an MP3 plus notation.
• Further, In this case, Metro-Goldwyn-Mayer (MGM) attempted to trademark its roar of a lion by applying for a sound mark at the EUIPO. However, the spectrogram that accompanied MGM's preliminary sound description was deemed ambiguous by EUIPO examiners and thus not sufficient as a public designation for the lion's roar.
• The case highlighted the representative issues of non-musical sounds and influenced subsequent procedural changes in the EU, which in turn influenced Rule 26(5) of India’s 2017 Rules permitting submissions in MP3, and bridging the former limitation of the rigid graphical representation.

1. Functionality

In the below cases the court dealt with the functionality part of the sound marks i.e, if the sound occurs naturally from the product’s operation, or has some other intended purpose, as in that case it cannot be trademarked.

• In the Harley-Davidson case, where Harley-Davidson is a well-known manufacturer of motorcycles, attempted to trademark the sound of its V-twin engine, referred to as “potato-potato-potato” in the US in the 1990s.
• However, when Harley applied for the sound mark, the application was met with opposition. The competitors argued that the sound belonged to all V-twin engines, which made it more of a function than a source-identifying sound. Harley-Davidson finally surrendered its application, highlighting how functionality restricts protection where a sound arises naturally to the operation of a product in a technical way.
• The case served as a global barometer for distinguishing protectable sound marks from sounds that have a utility component. It catered to India’s cautious application of Section 9(1)(b) under the Trade Marks Act.

1. Distinctiveness

The below instances deal with the distinctiveness of the sound marks (more acceptable way oof registration in India) i.e if the sound can be distinctive of the source of goods and/or services or if consumers identify the sound as coming from one source.

• In India, matters relating to sound marks have been relatively more advanced. The Yahoo yodel became the first registered sound mark in 2008 because of acquired distinctiveness and established an early recognition regarding consumer association as a key element in determining distinctiveness.
• Later in 2011, ICICI Bank registered rights for its jingle "Dhan Dhan Dhan," with its accompanying music, seeing the Indian Registry's gradual acceptance of musical sounds as naturally distinctive.
• Although Rule 26(5) of the Trade Marks Rules, 2017, encourages filings in the form of musical notation, other onomatopoeic sounds, like Britannia's "ting-ting-ting," have also been registered recently, which shows that examiners are deemphasizing strictly technical distinctiveness in favor of increased market recognition and consumer association. Conversely, the European Union Intellectual Property Office (EUIPO) rejected applications similar to Netflix's "Tudum" for being too short or lacking distinctiveness.
• Nevertheless, India's willingness to consider such sounds as registered marks based on acquired distinctiveness reflects an emerging, more adaptable situation that weighs international precedents "with what Indian consumers recognize as a sound mark," demonstrating a process of Indian practices slowly converging with international cases to date regarding sound marks.

AUTHOR’S PERSPECTIVE

India has progressed in recognizing sound marks; however, enforcement and standards are not uniform. The reliance on musical notation limits protection for sound marks, particularly for AI-generated auditory content or sounds that are non-tonal. Trademark examiners often do not have much training in sound engineering leading to an increased likelihood of being mistaken about distinctiveness and functionality. AI-generated voices and soundscapes complicate ownership and originality issues. In cases involving the reproduction of voices, such as Anil Kapoor v. Simply Life India and Arijit Singh v. Codible Ventures, courts had to address unauthorized use of voice reproduction but offered no framework for registration.

As businesses become more and more focused on experience-based marketing, India should go beyond traditional visual norms and take advantage of a holistic approach to sensory trademarks. Trademark law should recognize sounds, scents, holograms, or other sensory indicators based solely on their ability to distinguish goods rather than solely based on visual representation. Encouraging interdisciplinary training plans for examiners involving legal, marketing and sound engineering experts would benefit the evaluation of distinctiveness and functionality. Developing a user-friendly sound mark database of registered sound marks with audio playback features would clarify the boundaries of protection and potentially spur innovations in auditory branding.

POSITIVE AND NEGATIVE IMPACTS

1. BENEFITS

• Stronger brand recognition – Sound marks help companies create an emotional connection with consumers. Catchy jingles and sound logos can trigger brand recognition faster than other visual cues and enhance customer loyalty.
• Encouragement of creativity in branding – Recognising sound marks will not only aid brands, but it also encourages them to invest in and develop unique sounds as signatures, achieving a climate of creativity and diversity in the market, and a climate of creative competition can result in sounds that are culturally important while being pleasing to consumers.
• Widening of IP portfolios – Sound marks will add another layer to a company’s IP portfolio while increasing its value. The licensing and marketing of sound marks could establish new revenue streams.
• Global competitiveness – Brands from India that opt for multi-sensory identities will be more marketable on a global level. Adapting India's laws to international standards will attract foreign investment and assist cross-border intellectual property protection.

1. CHALLENGES

• Assessing distinctiveness and non-functionality – It is still a tough task to decide whether a sound is distinctive or just functional. For example, Engine noises or notification beeps are often essential to how a product works, making them functional sounds, but they cannot be registered as trademarks.
• Graphical representation requirement – The requirement for musical notation or graphical depiction still makes it difficult for the applicants, particularly for the sounds that cannot be easily notated or when it comes to AI-generated noises, but the EU’s decision to drop this requirement is a sign that modern technology is capable of identifying sound marks without the need for graphical representation.
• Copyright Overlap – Sound marks often overlap with copyright protection for musical works and recordings of those works. Determining the extent of trademark (focusing on the source-identifying function) versus copyright protection (focusing on creative expressiveness) requires careful legal analysis to navigate dual monopolies and conflict between the two forms of intellectual property protection.
• Inconsistent guidelines/case law – The Indian Trade Marks Office has no robust guidelines for sound marks and, as a result, is inconsistent in its application to sound marks. As a result, applicants may not know whether a specific onomatopoeic description will be accepted or whether a spectrogram is sufficient.
• Enforcement complexity – The process of infringing and proving infringement of a sound mark is more complex than the same for visual marks. Sounds that violate may go through slight modifications and making an expert acoustic evidence would be expensive. If the rights holders do not have specialized enforcement mechanisms at their disposal, they may find it hard to protect their marks.

RECOMMENDATIONS

• Policy reforms – The Trade Marks Rules should be amended to permit sound marks to be depicted only as sound files or in digital formats that fulfill the required clarity standards. Further, the removal of a graphic representation requirement will parallel global best practice and helps to facilitate the registration of sounds that are not music.
• Training initiatives – Interdisciplinary training should be provided for trademark examiners in the fields of acoustics, digital sound processing, and the commercial functions of sonic branding. The establishment of a group of specialized examiners would lead to consistency and fairness.
• Infrastructure improvements – An online database of sound marks that can be searched with audio playback needs to be created. The database would help examiners and companies to not only avoid conflicts but also to monitor infringement and innovate.
• Awareness and education – Implement outreach/information programs for businesses, particularly small and medium enterprises, to educate them on the availability and value of sound mark registrations. In addition, encourage creative industries, including tech developers, to think about sound branding when developing their IP strategies.
• Future outlook – Gear up for the challenges that will be raised at the crossroads of AI, augmented/virtual reality, and auditory branding. Policymakers would be expected to look into the attribution and regulation aspects of AI-generated sounds, consider voice marks and other sensory marks, and work with copyright law to ensure a balanced IP ecosystem.
• Future considerations – Gear Up for the new challenges related to AI, augmented/virtual reality, and sonic branding. Policymakers should address how AI-generated noises are to be attributed and regulated, examine voice marks and other sensory marks, and work in harmony with copyright law to establish a balanced IP environment.

CONCLUSION

The sound marks have been a dividing line among brand identities in an economy that is becoming more and more digital and immersive. The Indian trademark system has gradually been altered to accept this unusual marking system. 2017 saw the introduction of the Trade Marks Rules, which provided a way for registration of sound marks . The TRIPS Agreement and the WIPO guidance are two global instruments that support sound marks as a valid registration category; the U.S.A. accepts audio files along with written representations, and the E.U. has totally eliminated the requirement for graphical representations.

The courts also appear to imply that the distinctiveness and the way of representing are the points that lead to protection, whereas the feature of being useful is a major cause of rejection for non-natural or technically necessary sounds. However, the Indian trademark scenario although this development continues, the practical difficulties still exist-persistent dependence on graphical representation, no defined criteria and standards, lack of technological capabilities lead to ambiguity and uncertainty in interpretation.

As artificial intelligence and virtual reality open up creative possibilities with sound, India’s trademark regime needs to modernize its approach by strengthening examiners’ knowledge, implementing digital filing systems, and creating harmonization between copyright/trademark law even further. Following best practices at the international level will assist in brand innovation and consumer protection.

The promise of protecting sound marks in India will depend on constructing a flexible framework that responds to technological advancement, while facilitating business use of sound as an effective, branded asset in a dynamic, multi-sensory global marketplace.

FOOTNOTES

1. Ketan Joshi, Understanding the Process of Sound Mark Registration in India, MONDAQ (Nov. 28, 2024), https://www.mondaq.com/india/trademark/1551540/understanding-the-process-of-sound-mark-registration-in-india
2. Abhishek Sanjay, Audible Identity: Rethinking Indian Trademark Law for Voice Marks, THE IP LAW POST (July 29, 2025), https://iplawpost.wordpress.com/2025/07/29/audible-identity-rethinking-indian-trademark-law-for-voice-marks/
3. Shayonee Dasgupta, ICICI Jingle Now Trademarked!, SPICYIP (Mar. 14, 2011), https://spicyip.com/2011/03/icici-jingle-now-trademarked.html
4. Anand & Anand, Yahoo! Yodel Becomes First Registered Sound Mark, WORLD TRADEMARK REVIEW (Sept. 29, 2008), https://www.worldtrademarkreview.com/article/yahoo-yodel-becomes-first-registered-sound-mark.
5. Trade Marks Rules, 2017, Rule 26(5)
6. Abhishek Sanjay, Audible Identity: Rethinking Indian Trademark Law for Voice Marks, THE IP LAW POST (July 29, 2025), https://iplawpost.wordpress.com/2025/07/29/audible-identity-rethinking-indian-trademark-law-for-voice-marks/
7. Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 15
8. World Intellectual Property Organization, Smell, Sound and Taste – Getting a Sense of Non-Traditional Marks, WIPO MAGAZINE (Feb. 25, 2009), https://www.wipo.int/en/web/wipo-magazine/articles/smell-sound-and-taste-getting-a-sense-of-non-traditional-marks-36622
9. Abhishek Sanjay, Audible Identity: Rethinking Indian Trademark Law for Voice Marks, THE IP LAW POST (July 29, 2025), https://iplawpost.wordpress.com/2025/07/29/audible-identity-rethinking-indian-trademark-law-for-voice-marks/
10. Trade Marks Rules, 2017, Rule 26(5)
11. Trade Marks Rules, 2017, Rule 2(1)(k)
12. João Pereira Cabral, The Elimination of the “Graphical Representation” Requirement and Its Effect on Non-Traditional EU Trademarks, INVENTA (Nov. 19, 2020), https://inventa.com/ip-news-insights/opinion/elimination-graphical-representation-requirement-and-its-effect-non
13. Shield Mark BV v. Joost Kist, C-283/01, EU:C:2003:641, 27 November 2003
14. Metro-Goldwyn-Mayer Lion Corp. v. OHIM, Case R 781/1999-4, Decision of the Fourth Board of Appeal of 25 Aug. 2003, https://www.copat.de/markenformen/r0781-1999-4.pdf
15. John O'Dell, Harley-Davidson Quits Trying to Hog Sound, L.A. TIMES (June 21, 2000), https://www.latimes.com/archives/la-xpm-2000-jun-21-fi-43145-story.html
16. Anand & Anand, Yahoo! Yodel Becomes First Registered Sound Mark, WORLD TRADEMARK REVIEW (Sept. 29, 2008), https://www.worldtrademarkreview.com/article/yahoo-yodel-becomes-first-registered-sound-mark.
17. Shayonee Dasgupta, ICICI Jingle Now Trademarked!, SPICYIP (Mar. 14, 2011), https://spicyip.com/2011/03/icici-jingle-now-trademarked.html
18. Abhishek Sanjay, Audible Identity: Rethinking Indian Trademark Law for Voice Marks, THE IP LAW POST (July 29, 2025), https://iplawpost.wordpress.com/2025/07/29/audible-identity-rethinking-indian-trademark-law-for-voice-marks/
19. Ketan Joshi, Understanding the Process of Sound Mark Registration in India, MAHESHWARI & CO. (Nov. 28, 2024), https://inventa.com/ip-news-insights/opinion/elimination-graphical-representation-requirement-and-its-effect-non
20. Mr Anil Kapoor v. Simply Life India and Ors, CS(COMM) 652/20
21. Arijit Singh v. Codible Ventures LLP, COM IPR SUIT (L) NO. 23443 of 2024
22. IMAGE USED: AI GENERATED