BRANDING BY SOUND: A COMPARATIVE STUDY OF SOUND TRADEMARK PROTECTION IN INDIA, EU, AND THE USA
- Vrinda Harmilapi & Soumya Juneja
- 7 hours ago
- 6 min read
INTRODUCTION
With the recent buzz surrounding the Indian Hotels Company Limited’s (IHCL) registration of a sound mark for its well-known brand “Taj”, sound trademarks have yet again become a trending headline among the public. While this registration may mark a first for the Indian hospitality industry, sound trademarks themselves are far from novel. A brand is typically known by its name and logo, but to leave an impact on the consumer, a brand must also incorporate other factors. They must offer a multi-sensory experience by not only evoking visually appealing factors, but auditory sensations as well. To be at par with their competitors, a brand must create an all-encompassing journey, and the most upcoming one is ‘sonic identities’. This is being increasingly relied upon by brands as a part of their legal and brand protectability, to evoke brand association. This article explores the concept of sound trademarks, details the scope of protection under The Trade Marks Act, 1999 and analyses and compares the practical challenges associated with registration and enforcement in India, United States of America and the European Union.
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.
REGISTRATION FOR TAJ SOUND TRADEMARK
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.
Since, it is necessary to represent the said mark graphically and prove its distinctiveness, Indian Hotels Company submitted the application as below:
(Sound mark comprises the music notes D E EGAE in D Major, set to 4-4 time signature and at a Tempo of 130 Beats per minute)
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:
Reliance Industries Limited’s ‘MOGO’ Jingle
Twentieth Century Fox Film Corporation’s ‘FANFARE’ Sound
TATA Consumer Products Limited’s ‘ShikShikShik’
Yahoo! Inc.’s yodel (first sound mark registration in India)
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.
COMPARATIVE ANALYSIS BETWEEN INDIA, EUROPEAN UNION AND THE UNITED STATES OF AMERICA
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[1]:
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[2] 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[3], 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[6].
CONCLUSION
Sound trademarks emphasize that what is heard can be equally as powerful as what is seen, reflecting the changing relationship between law, technology, and consumer psychology. While there are several challenges to registering and enforcing sound trademarks in India, there is a scarcity of case laws to cite as precedent. Some of such challenges being: firstly, ambient sounds, electronic tones, and composite audio cues may resist precise musical notation, leading to objections. Representing every sound graphically may pose a hurdle to future Applicants and thus, following the United States approach here might be helpful. Secondly, distinctiveness is more often than not proved through extensive use, however new applicants might not be able to prove that criteria and face difficulties. Keeping the same in mind, India has evidently embraced unconventional trademarks, especially sound marks, and the adoption of such trade marks and development of cases, the legal framework is steadily moving toward greater clarity and protection.
Vrinda Harmilapi
Associate
Soumya Juneja
Associate
[2] Case C-283/01; European Court Reports 2003 I-14313.
[4] Registration No. 1395550, Dated August 15, 1985.
[5] Registration No.2450525, Dated April 06, 1999.
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