Branding by Sound: A Comparative Study of Sound Trademark Protection in India, EU, and the USA- Statutory Framework in India

 

The Trade Marks Act, 1999 does not explicitly define a sound trademark. However, Section 2(1)(zb) of the Act defines a ‘trademark’ as a mark capable of distinguishing goods or services and capable of being represented graphically. In support of the same, Rule 2(1)(k) of the Trade Marks Rules, 2017, permits representation of trademarks in either paper or digital form. In furtherance, Rule 26(5) of the Trade Marks Rules 2017 (2017 Rules) specifically talks about sound trademarks, mandating that a sound mark must be submitted in an MP3 format, not exceeding 30 seconds, on a medium which allows for easy and clearly audible replaying and; a graphical representation of the sound, through musical notation. These provisions collectively reflect India’s gradual yet deliberate shift towards accommodating non-conventional trademarks within its statutory regime. Tata  Group’s Indian Hotels Company Limited (IHCL) secured registration for its first sound trademark i.e. ‘Taj’ on January 07, 2026 under Application Number 6962095 under Classes 09, 35 and 43. It marks as a major celebration as it is the first ever registration for a sound mark in the hospitality industry in India, thereby recognising the importance of sound marks yet again. In the Reply to the Examination Report against a Section 9(1)(a) objection, the Applicant proved the essential elements of a sound trademark in the following manner:

 

 “The subject sound mark is a short harmonic chime, composed to evoke serenity, luxury, and warmth — qualities that resonate deeply with the expectations of guests in the hospitality sector. Unlike common ringtones or generic musical phrases, the subject sound mark is:

 

 • Not functional, i.e., not used for announcements or operational cues.

 

* Not customary in the industry or descriptive of any service feature.

 

* Designed with distinctive tonal characteristics to create a strong audio identity”.

 

Further, it is highlighted that some of the notable sounds have already been registered in India, examples of which are as follows:

 

1)     Reliance Industries Limited’s ‘MOGO’ Jingle

 

2)     Twentieth Century Fox Film Corporation’s ‘FANFARE’ Sound

 

3)     TATA Consumer Products Limited’s ‘ShikShikShik’

 

4)     Yahoo! Inc.’s yodel (first sound mark registration in India)

 

5)     Nokia’s Tune

 

Therefore, while sound trademarks may not enjoy as much public recognition as the conventional trademarks, they are in reality, accepted and protected far beyond common perception.       European Union

EUIPO Guidelines 9.3.7 states that a sound mark can only be represented by either submitting an audio file reproducing the sound or a musical notation. Article 3(3)(g) of EU Trademark Implementing Regulation states that a sound mark is exclusive to a sound or combination of sounds. That being said, any marks which consist of more features, do not qualify as sound marks and are referred to as multimedia marks. Additionally, the kind of marks which are unlikely to be accepted without proof of factual distinctiveness include:

i) very simple pieces of music consisting of only one or two notes;

ii) sounds that are in the common domain;

iii) sounds that are too long to be considered as an indication of origin;

iv) sounds typically linked to specific goods and services.

Shield Mark BV v. Joost Kist h.o.d.n. Memex is an EU landmark judgment that recognised the existence of non-traditional trademarks, particularly sound marks and concluded that sounds can constitute trademarks if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings and are capable of being represented graphically.

Thus, the EU strictly follows the prerequisite of a mark being distinctive and graphically represented while applying for the same. The same approach is being followed in India as well.

Even in the judgment of BVG v EUIPO, a two seconds sound mark was applied for registration and the EUIPO examiner refused the application on the absolute ground of lack of distinctiveness. From the examiner’s viewpoint, the sound was too short to have garnered any recognition amongst the relevant public. The said decision was upheld by the Fifth Board of Appeal. However, the General Court overturned the said refusal and held that “Neither the duration of the mark applied for nor its alleged ‘simplicity’ or ‘banality’, which does not in itself prevent the corresponding melody from being recognised, are obstacles which are sufficient, in themselves, to justify the lack of any distinctive character”. This judgment is relevant when practitioners need to respond to refusals based on absolute grounds.

 

United States of America

The United States of America has adopted a more liberal approach in registration of unconventional trademarks, as compared to the EU, that follows a more cautious approach. The major difference between these jurisdictions is that in the United States it is not a mandatory requirement to represent a mark graphically. The Code of Federal Regulations, Rule 37, 2.52 states: “(e) Sound, scent, and non-visual marks. — An applicant is not required to submit a drawing if the mark consists only of a sound, a scent, or other completely non-visual matter. For these types of marks, the applicant must submit a detailed description of the mark”.

It is simpler to get a sound mark registered in the United States as it follows the doctrine of non-functionality and distinctiveness. Section 1052 of Lanham Act has the same criteria for the registration of a mark. The Courts in the United States have accepted applications that were represented through sonograms or sound recordings. The Lion Roar trade mark by MGM[4] was registered through a sonogram and ESPN’s[5] repeated notes on the Sports Center were registered as a sound mark as well. Some other examples of registration of sound marks are NBC Entertainment Chimes, Looney Tunes Theme Song, etc.

 

From a viewpoint of comparison, it is safe to say that while the EU has stricter prerequisites for a sound trademark (something that India has also adopted), the approach to register such marks has become more liberal in the recent times, as further seen in the case of BVG v EUIPO.