On The Legal Problems Of Sound Mark

Sound mark is a type of mark which comprises music or other especial sounds. and the mark that the producers or sellers using in the wares or services is capable of distinguishing the source of the wares or services. Sound mark has been definitely recognized by Singapore Treaty, and can be protected through registration in many countries and regions such as the United States,the European Union and etc.When inquiring into if sound mark can be registered as a mark, we should review the essential qualifications of registering sound mark .The essential qualifications include the positive qualifications and the negative qualifications. The positive qualifications is that sound mark should be distinctive, which can distinguish different source of the wares or services. The negative qualifications include the functional sounds and the universal sounds. In order to meet the commonality benefits and limit the unfair competition in the market, the functional sounds and the universal sounds cannot be registered as a mark. There are mainly three legislative style about the procedure qualifications of registering sound mark: graphic representation systems, descriptive representation systems, graphical and descriptive representation systems. Since sound mark is difficult to be represented graphically as the conventional mark, advising adopting the graphical and descriptive representation systems, namely combining the graphical and descriptive representation, and the electronic specimen. It is a new problem that the right of sound mark holders will be confronted by infringement in the future. The acts of infringing the right of sound mark mainly include: sound mark confusion, fabricating or making bold to producing sound mark and reverse counterfeit of sound mark. Concerning the jurisdiction of case that infringing the right of sound mark, The criterion of the verdict should be if the products that dealing with the case can be obtained in Chinese mainland.Now sound mark isn't protected under Chinese Trademark Act. When Trademark Act will be amended thirdly, sound mark should be protected definitely. Advising amending our Trademark Act as follows: the essential qualifications,the procedure qualifications,the acts and jurisdiction of sound mark infringement. by this way , Chinese trademark Act can joint the international Trademark Act, guaranteeing the fair competitive environment in the market , sticking up the right of our country's marks, and accelerating the economy development of our country.