Tencent’s sound trademark failed for the second time. Why is it so difficult to apply for a sound trademark?

Sound trademark is also one of the eight forms of trademark application. The other forms include text, graphics, letters, numbers, three-digit logos, color combinations, etc. However, it was not until the implementation of the new Trademark Law in 2014 that the Trademark Office began to accept sound trademarks. Two years later, on February 13, 2016, my country’s first sound trademark application for a China Radio International broadcast program began to be reviewed. After complying with the regulations, the preliminary review and announcement was made, becoming the first sound trademark in my country to be announced on preliminary review. Tencent also applied for a sound trademark last year, but unfortunately it was rejected due to lack of distinctiveness. Recently, QQ's "man coughing" sound trademark application was also rejected, and the subsequent rejection review was unsuccessful. Could it be that the sound trademark is so Difficult? Why does Tencent's "Man Cough" lack distinctiveness? Tencent's awareness of protecting intellectual property rights deserves praise. After my country began to accept sound trademarks in 2014, Tencent reported this "Man Cough" to the Trademark Office on May 4, 2014. Trademark, designated services include Class 42 remote data backup, electronic data storage, cloud computing, software operation services, information technology consulting services, hosting computer stations (websites), computer virus protection services, provision of Internet search engines, and map drawing Services and computer software updates and other services. It is reported that this sound trademark consists of two relatively low and short male coughs "ke-ke" (ke-ke). It is the sound of a man coughing when a stranger requests to add a friend in the QQ application on the PC. Anyone who has used QQ should be familiar with it. The Trademark Office reasoned that "the trademark is the sound of a man coughing 'keke', and it lacks distinctiveness when used in designated services and does not have the identifiable function of a trademark." According to Article 11, Paragraph 1, of the Trademark Law, In accordance with the provisions of Item (3) and Article 30, the application for trademark registration shall be rejected. Tencent was dissatisfied and conducted a trademark review. The reason for the review was that the QQ instant messaging platform was launched in 1999 and now has a huge audience. The applied trademark has also become well-known to consumers. The applied trademark itself has the distinctiveness that a trademark should have, and after long-term and extensive publicity and use, it has established a unique corresponding relationship with the applicant, which can completely distinguish the source of services. After review, the Trademark Review and Adjudication Board held that the applied trademark is the sound of a man coughing. It is designated for use in cloud computing and other services and is not easily recognized as a trademark. It lacks the distinctive features that a trademark should have and falls under Article 11, Paragraph 1 ((1)) of the Trademark Law. The situation referred to in item 3). The use evidence submitted by the applicant does not involve the use of the applied trademark in cloud computing and other services, and cannot prove that the applied trademark has become distinctive after use. In accordance with the provisions of Article 11, Paragraph 1, Item (3), Article 30 and Article 34 of the Trademark Law, the application for registration of the trademark in all review services shall be rejected. Why is it so difficult to apply for a sound trademark? When my country revised the Trademark Law for the third time in 2013, sound trademarks were included in the list of registrable trademarks. Since the current Trademark Law came into effect on May 1, 2014, the Trademark Office has accepted about 600 sound trademark registration applications, but only about 20 have been approved for registration. For Chinese consumers, sound trademarks are a new thing, whether as a new form of trademark in law or as an example encountered in real life. Consumers have long been accustomed to traditional trademarks using words and graphics as forms of expression, and rarely use sound as a sign to distinguish the source of goods or services. The distinctiveness of a trademark includes inherent distinctiveness and distinctiveness acquired through use. Made-up words such as sony and kodak, as trademarks, have inherent distinctiveness and meet the distinctiveness requirements of the Trademark Law. So, can a highly original sound trademark, such as a short piece of self-composed music, satisfy the trademark distinctiveness requirements without actual use? According to the "Trademark Examination and Trial Standards", under normal circumstances, sound trademarks require Remarkable characteristics can be achieved only after long-term use. This limit should be set taking into account the particularities of consumer perception as mentioned above. After all, it is difficult for consumers to directly identify non-traditional trademarks such as sound trademarks as signs indicating the source of goods or services. Only through long-term publicity and use by operators can consumers establish a connection between a certain sound and the operator, and then the sound can obtain the distinctive features that should be obtained when registering a trademark. To prove that its sound trademark has acquired distinctive features through use, a trademark registration applicant may submit relevant usage evidence to the Trademark Office or Trademark Review and Adjudication Board.

Sound trademarks can be used in a variety of ways, including when opening, closing or using goods, when starting, ending or providing services, in business or service premises, on company websites, on radio, television, Used in online or outdoor advertising, etc.