The first case of sound trademark in China: Beijing High Court final judgment QQ prompt tone registration

Accompanied by the QQ prompt tone “嘀嘀嘀嘀嘀嘀” of countless people online chat, now you can register the sound trademark. Recently, the Beijing Higher People’s Court finalized the judgment and found that the “嘀嘀嘀嘀嘀嘀” sound trademark applied by Tencent Company was significant and approved for registration. This is also the first case of sound trademark in the field of trademark law in China.

The time when the sound trademark entered the protection of China’s trademark law was not long. In 2013, the Trademark Law was amended, and the sound was included as a symbol for identifying the source of goods and services. The remarkable review of the sound was also being explored. As the first case of sound trademarks in China, QQ prompts also appeared in the process of being recognized as a sound mark. After the trademark application of QQ prompt tone was rejected by the Trademark Office and the Trademark Review and Adjudication Board, the Beijing Intellectual Property Court and the Beijing Higher People’s Court heard that the QQ prompt tone can function as a source of identification services on the designated service items.

Two times to file a trademark application, the court found that the QQ tone is significant

As early as the birth of QQ in February 1999, “嘀嘀嘀嘀嘀嘀” was used as the reminder of new news, and it was loved by hundreds of millions of users, and the “嘀嘀嘀嘀嘀嘀” prompt tone became very easy to be Public perception and memory. After the sound trademark was included in the protection of the trademark law, on May 4, 2014, Tencent Company submitted the registration of the “嘀嘀嘀嘀嘀嘀” (sound trademark) trademark to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office). Application.

On August 11, 2015, the Trademark Office rejected the application on the grounds that “the application for a trademark consists of simple, ordinary tones or melody, and lack of distinctiveness in the designated use items”. Subsequently, Tencent submitted a review application to the Trademark Review and Adjudication Board, and submitted a number of evidence materials, including evidence that multiple versions of QQ have a new message, but the Trademark Review and Adjudication Board “is difficult to distinguish between service sources. On the grounds of the effect, the registration application was rejected.

The QQ prompt tone has been widely used for a long time, and it has a wide range of fields. It has been able to distinguish the source of service. Tencent has filed an administrative lawsuit with the Beijing Intellectual Property Court and submitted an audio file for the application for trademark, a trademark registration application and an application for trademark. Spectral table, spectrum table, waveform chart to prove that the application of the trademark is not a simple repetition of the “嘀嘀嘀嘀嘀嘀” sound, and 152 documents retrieved by the National Library to prove that the QQ tone has been used in a long time, and A wide range of fields that can serve to differentiate service sources.

The court held that although the QQ tone is composed only of the same sound element “嘀” sound, and the overall duration is shorter, it contains six “嘀” sounds, and each “嘀” sound has a higher pitch, and each “嘀” sound The interval between the short and continuous state, the application of the trademark as a whole in the auditory perception of the formation of a relatively bright, continuous, short-acting effect, with a specific rhythm, sound effects, and is not common in life, therefore, QQ prompt sound does not belong The overall situation is relatively simple.

The court also believes that the QQ software attached to the QQ prompt tone is used as an instant messaging software for a long time, a wide range, a large market share, and a large number of fields involved in the use of the group. With the increasing popularity of QQ and QQ trademarks, QQ prompts have formed a relationship with QQ that can be referred to each other. At the same time, QQ prompt tone has established a high reputation in the field of instant messaging, and it has strong recognizability. It has established a stable correspondence with QQ and Tencent, and applied for trademarks on the designated “Information Transfer” service. It functions as a source of identification services for trademarks.

As the first domestic sound trademark case, it has guiding significance for reviewing sound trademarks.

Judging whether a sound mark is significant or not is an important factor in determining whether a sound can be used as a trademark. The CCTV “News Network” started to be familiar to the public, and the “Windows” boot and shutdown sound effects of the computer belong to the category of sound trademarks. However, in the field of trademark law, how to examine the salience of sound is still being explored.

The Beijing Intellectual Property Court believes that in addition to following the basic judgment principles, standards and rules for the distinctiveness of traditional trademarks, it should also consider the use of goods or services, the cognitive habits of the relevant public, and the industry in which the goods or services are designated. The actual situation and other factors. At the same time, it should also be combined to examine whether the whole has a specific rhythm, melody and sound effect that can play a recognition role in auditory perception, so as to judge whether it can distinguish the source of goods or services.

The Trademark Review and Adjudication Board believes that the sounds of the application for the trademark “嘀” are common in the alarm sounds or prompts of related products containing electronic components. The “嘀” sound is more common, lacking the distinctiveness of the trademark, and it is difficult to distinguish The role of the source of services and appeal to the Beijing Higher People’s Court.

In the second trial, the Beijing Higher People’s Court found that the “嘀嘀嘀嘀嘀嘀” voice had the role of identifying the source of service through long-term continuous use on QQ, and agreed that the court of first instance found that the applied trademark was on QQ-related services. It has the distinctive features required for trademark registration.

The Beijing Higher Court of Justice upheld the judgment of the first instance court and preliminarily applied for the registration of the trademark in the “information transmission, online forum, computer-aided information and image transmission, provision of Internet chat rooms, digital file transmission, online greeting card transmission, e-mail” Approved. The court held that although such service projects did not use the sound of applying for trademarks, the signing of service projects and “information transmission” belonged to QQ as a comprehensive instant messaging platform, and the voice of the trademark application had already established a corresponding relationship with QQ. Therefore, the application of the trademark application is also significant in the above service items.

The industry believes that the QQ prompt tone trademark case is the first case of sound trademark in the field of trademark law in China. The trial of the case provides a very valuable reference for the examination of the distinctiveness of the sound mark, which has the typical meaning of the industry.