"Buy it, buy it" will become a sound trademark? There are not many successful "predecessors", and distinctiveness is an important criterion

The sound trademark, the three-dimensional logo trademark, and the color combination trademark are collectively called non-traditional trademarks or new types of trademarks. Although the sound trademark has its special form, it is essentially the same as other trademarks, that is, it is a commercial logo used to identify the source of goods or services.

  Our reporter Fu Lili

  "Oh my god! Buy it, buy it!" People who often watch live broadcasts on Douyin must be very familiar with the sign of "Ji lipstick brother" Li Jiaqi.

  Recently, some media reported that Shanghai Makeup E-Commerce Co., Ltd. applied to register "Oh my god! Buy it and buy it!" As a sound trademark, and Li Jiaqi is the company's second largest shareholder. In this regard, Li Jiaqi responded that the move is a protective registration, the purpose is to avoid malicious use by some sellers, thereby misleading consumers.

  In life, everyone is no stranger to the dazzling variety of text trademarks, but it is the first time many people have heard that sound can be registered as a trademark. What is more interesting is how is the sound trademark registration different and how to review it, will it become the norm in the future?

  Although the form is special, the essence is no different from other trademarks

  "Sound trademarks, three-dimensional logo trademarks, and color combination trademarks are collectively called non-traditional trademarks or new types of trademarks." Zang Baoqing, deputy secretary general of the China Trademark Association, said in an interview with a reporter from Science and Technology Daily.

  Zang Baoqing introduced that the name "new type of trademark" itself indicates that the sound trademark is not a common form of trademark, and it has special features compared with the trademark that people generally recognize. However, although the sound trademark has its special form, it is essentially no different from other trademarks, that is, it is a commercial logo used to identify the source of goods or services.

  Like ordinary trademarks, sound trademarks should be examined for their legality, distinctiveness, and precedence. Zang Baoqing said that some sounds may have a certain function, at which time a functional review is required. The difficulty of sound trademark review is generally its distinctiveness, that is, in people's perception, a certain sound will become a source of distinguishing goods or services and different from others. Some sound trademarks are text content expressed in a certain sound, and both text and sound content are subject to review.

  Coincidentally, Chen Jing, a lawyer from Beijing Hongshan Law Firm, also believes that the registration of sound trademarks should meet the substantive conditions. Having distinctiveness and non-functional distinctiveness is the soul of trademark protection. Sound trademarks should meet the distinctiveness requirements as ordinary trademarks. Article 9 of the "Trademark Law of the People's Republic of China" (hereinafter referred to as the "Trademark Law") stipulates that trademarks applying for registration shall have distinctive features for easy identification. The criterion for judging the distinctiveness of sound trademarks is whether consumers can distinguish the source of goods or services from the perspective of sound from the perspective of hearing under general attention. For those general-purpose sounds that cannot realize the function of distinguishing the source of goods or services, such as ordinary bird chirping, horn sounds, firecracker sounds, etc., approval registration cannot be obtained.

  "The registration of sound trademarks must also meet the non-functional requirements." Chen Jing said, the functionality of the sign means that the characteristics of the sign are generated by the nature of the product itself, and are required to obtain technical effects or make the product of substantial value. And essential. For example, an ordinary ATM machine will emit a "wow la" bill counting sound when issuing banknotes. This sound is functional and cannot be registered.

  Less review experience, more difficult to register

  It is understood that the information description of the trademark application for registration is as follows: "This sound trademark uses the well-known network anchor Li Jiaqi vocals and reads" Oh my god! Buy it and buy it! " Mobility, sound has a very strong personal style and recognition. "

  In this regard, some experts said that from the content to the form, "Oh my god! Buy it and buy it!" The possibility of successful registration is very slim. In terms of content, first of all, "god" refers to religious content. In a case tried by the Supreme People's Court, a trademark named "Taishan Great Emperor" was declared invalid because it was believed to be prone to adversely affect religious content.

  Secondly, "buy it, buy it" is just a daily marketing term. When you open all the videos and live broadcasts of goods, almost all of them say this sentence in various tones and fonts, and most people will not recognize it as a trademark.

  As for whether the special expression of Li Jiaqi's intonation can be counted as distinctive, experts believe that it cannot be said that after a lot of use, people know Li Jiaqi as soon as they hear this voice, so this voice is a trademark. "A lot of use must be used as a trademark. The relevant public can recognize this mark as a trademark. The things that can identify the source are not all trademarks, and the specific decoration can also identify the source of the product, but it will not become a result. Trademark. "Chen Jin said.

  In fact, although sound registration has been a trademark for many years, so far there have been only hundreds of applications, and few have registered successfully.

  According to Zang Baoqing ’s analysis, the current total volume of sound trademarks and the rate of approval for registration are relatively low, mainly for the following reasons: sound trademarks are the types of trademarks that were introduced after the third revision of the 2014 Trademark Law. There are not many cases for reference and reference; most voices were not used as trademarks at the beginning of their appearance. It is difficult to prove that it has the distinctiveness that can be registered as a trademark; there are few examination experiences related to sound trademarks, and the relevant units are cautious.

  As for many issues of public concern-how to define infringement of sound trademarks, Zang Baoqing said that the infringement judgment and protection of sound trademarks are the same as other trademarks in principle. Behavioral boundaries. "For the owner of the sound trademark, the key is to figure out where the distinctiveness of the sound trademark is. The behavior of others only constitutes trademark infringement when it destroys this distinctiveness and causes confusion about the source of the goods or services. ."He says.

  Cognitive habits are changing, sound trademarks will be more common

  Despite the "difficult road", there are precedents for successful application for the sound trademark.

  When I was a kid, I played the game of Xiaobawang, and I still remember the phrase "Wangzi Jackie Chan" in Jackie Chan's brother. This advertisement that was popular in the north and south was the sound trademark successfully registered in 2016. Also successfully registered was the famous opening of the Central People's Broadcasting Station: "Children, the little horn began to broadcast."

  In Zang Baoqing's view, since the most basic function of voice is expression and communication, it is generally difficult for people to associate a certain voice with a trademark. However, this is not absolute. The product name, packaging, decoration, shape, advertising slogan, etc., did not appear as trademarks at the beginning, and some of these signs have been used and promoted extensively. The origin of the goods or services has established a connection. At this time, the distinctiveness is obtained after use, and there is the possibility of being registered as a trademark.

  To specifically determine whether a sound mark can be registered depends on whether the relevant public has established such a connection. The conversion into legal language depends on whether there is evidence to support the sound's significance through use. Usually refer to factors such as the time, method, intensity, audience, field of use, and effect in the audience of the sound. Whether the sound trademark can be registered in the end, there are both the consideration of objective evidence and the subjective judgment of the examiner.

  "With the networking and informationization of social life, people's lifestyles, consumption patterns, and cognitive habits are changing. As an intuitive and efficient communication tool, voice plays an increasingly important role in all aspects of social life. The more significant, the sound trademark may be more common and popular. "Zang Baoqing said.

  Zang Baoqing reminds a few points that need to be noted for applicants for registration of sound trademarks: in terms of the form, that is, the file requirements for applying for trademark registration with sound trademarks are special, the corresponding documents should be submitted in accordance with the format and content required by the Trademark Office In terms of examination procedures, the State Intellectual Property and Trademark Office may issue examination opinions to applicants for registration of sound trademarks. To make good use of this system, elaborate your opinions and submit corresponding evidence; the core point is to be sufficient Submit evidence, which is the key to the sound trademark can be approved for registration.