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In the modern commercial world, trademarks are no longer limited to images, colors, or names but have expanded to various forms, including sound trademarks, which are increasingly utilized to create a unique identity for brands.
Distinctive sounds such as the Nokia tune, the Windows startup sound, Intel’s jingle, or the ticking clock from the 60 Minutes program have become effective tools for brands to convey messages in a subtle and impressive manner.
However, registering sound trademark in Vietnam faces significant challenges. An incomplete legal framework, a complicated examination process, and limited consumer awareness of sound trademarks have posed substantial barriers for businesses.
This article analyzes these challenges, highlighting the urgent need to improve the legal framework and raise awareness in the context of global commerce.
Status of Non-Traditional Trademark Registration Globally and in Vietnam
Globally, sound trademarks have been recognized and protected in many developed countries like the U.S., the EU, and Japan—where intellectual property law systems are well-established. Besides sound trademarks, other non-traditional trademarks such as colors, scents, tastes, gestures, and motions have also gradually received protection in several nations.
Protecting non-traditional trademarks has always been challenging. For instance, to secure a color trademark, applicants must prove that the color has acquired “secondary meaning”—meaning consumers immediately associate the color with a specific product from a particular brand.
This is difficult when basic colors are ubiquitous in the market. Unique derivative colors from major color groups struggle to compete in recognition against primary colors.
Scent trademarks are another specific type of non-traditional trademark as they depend on the sense of smell and the subjective perception of examiners. A notable example is the scent of freshly cut grass in tennis balls by Vennochi, which was successfully registered in the U.S.
Taste trademarks are perhaps the most challenging type of non-traditional trademark to register. Currently, many pharmaceutical companies have attempted to register taste trademarks for their products, but such protection entails stringent requirements for distinctiveness and recognizability. Registration authorities often require proof that the taste serves as a unique identifier, unrelated to the product’s functional purpose—an almost impossible standard in many cases.
Protecting non-traditional trademarks requires brands to meet strict legal requirements and adopt clear strategies for trademark development. Moreover, countries have varying standards for accepting such registrations, leading to discrepancies in protection practices.
Apart from legal issues, economic benefits also come into play. Even if protection is secured in one country, the lack of recognition in others diminishes its economic value for large enterprises. Only when the majority of key markets acknowledge and regulate the protection of non-traditional trademarks will there be a significant increase in registration applications and approvals.
Nevertheless, the protection of non-traditional trademarks demonstrates that the market values creativity and reflects the efforts of nations to meet the diverse needs of businesses and consumers.
Legal Regulations on Sound Trademark Registration in Vietnam
In developed Western countries, signature sounds of major brands—from the opening jingles of phone manufacturers to the distinctive advertising sounds of tech companies—are regarded as valuable intellectual property assets.
Regulations in these countries not only recognize sound trademarks but also establish stringent standards to ensure high distinctiveness and consumer recognition.
Their examination procedures are also highly advanced, employing state-of-the-art sound analysis technologies to ensure trademark exclusivity and minimize intellectual property infringement risks.
Conversely, in Vietnam, the concept of sound trademarks remains relatively new, lacking widespread recognition and a comprehensive legal framework. Clause 20, Article 1 of the 2022 Amendment to the Intellectual Property Law, amending Clause 1, Article 72 of the Intellectual Property Law, states:
“1. A trademark is a visible sign in the form of letters, words, drawings, images, three-dimensional shapes, or a combination of these elements, expressed in one or more colors or as a sound represented graphically.”
Accordingly, sound has been added to the list of protectable signs for trademarks, effective January 14, 2022.
Regarding protection conditions, Clause 2, Article 105 of the Unified Document 11/VBHN-VPQH 2022 on the Intellectual Property Law requires that if a trademark is a sound, the application must include an audio file and a graphical representation of the sound.
Legal Challenges in Registering Sound Trademarks in Vietnam
The current intellectual property system in Vietnam primarily focuses on image-based or textual trademarks, making the registration of sound trademarks uncommon and challenging.
At present, Vietnam lacks specific standards to evaluate the exclusivity and distinctiveness of this type of trademark. This creates a significant gap in brand asset protection for businesses looking to expand their brand recognition through sound.
Furthermore, the inconsistency in the legal framework adds additional challenges for businesses. Intellectual property enforcement agencies in Vietnam have yet to establish a unified approach to handling and protecting non-traditional trademarks like sound trademarks.
This means that even if a business attempts to register a sound trademark, their trademark protection process may face risks, legal disputes, and uncertainties during examination. The absence of clear standards and specific guidelines for sound trademarks can result in the failure to adequately protect a business’s trademark, putting them at a disadvantage in potential disputes.
All these factors contribute to a complex environment for registering and protecting sound trademarks in Vietnam. As a result, Vietnamese businesses are unfamiliar with using sound as a trademark, while regulatory agencies are still exploring and updating the legal framework to align with global trends.
Technical Challenges and Examination Processes
One major barrier to registering sound trademarks in Vietnam lies in technical challenges and examination processes. Currently, Vietnamese authorities are not fully equipped with the technology and specialized software needed to analyze and store sound trademarks, unlike intellectual property offices in Western countries.
Compared to visual trademarks, examining sound trademarks requires a more complex process and higher technical expertise due to the need to identify the uniqueness and distinctiveness of each sound.
For a sound trademark to be granted protection, the examining authority must recognize and differentiate the various nuances of the sound while ensuring it is unique, non-duplicative, and not confusingly similar to other sounds.
The challenge begins with distinguishing minute elements of a single note, then expands when combining multiple notes into a short melody and reviewing the entire sequence for distinctiveness.
This difficulty escalates when differentiating between characteristic sounds and common sounds. For example, familiar sounds like alarm bells or background music may easily cause confusion or fail to demonstrate significant distinctiveness since they are frequently encountered in daily life and lack high exclusivity.
Thus, establishing a unique sound trademark requires specialized technical procedures to clearly differentiate the sound’s elements. However, this has not been effectively achieved in Vietnam, where tools for sound analysis remain limited, hindering the trademark registration process for businesses.
Market and Consumer Awareness Challenges
In addition to legal and technical barriers, the registration and protection of sound trademarks in Vietnam face challenges due to limited awareness among businesses and consumers.
Currently, most Vietnamese consumers recognize brands primarily through logos, colors, or names, while brand recognition through sound remains unfamiliar. Many businesses also have yet to focus on using sound as a trademark, resulting in a lack of investment and effective utilization of this trademark type.
The unfamiliarity with sound trademark in Vietnam has led businesses to overlook their potential to create lasting and memorable impressions on customers.
Furthermore, the lack of understanding about the value of sound trademarks increases risks related to disputes and infringements. Sounds, being easily copied and reused, can be exploited or infringed upon if clear legal protection mechanisms are not in place.
When disputes arise, determining ownership of a sound often becomes contentious, as current laws do not provide a robust legal basis for protecting sound trademarks. This not only causes losses for businesses that invest in building sound trademarks but also undermines consumer trust in brand reputation.
Conclusion
Registering sound trademarks in Vietnam currently faces significant challenges across legal, technical, and market dimensions. These barriers not only complicate the registration process but also impact businesses’ ability to protect their intellectual property rights.
The current legal framework and examination procedures lack the necessary support to accommodate this novel and unique type of trademark. Moreover, awareness of the value and potential of sound trademarks among businesses and consumers remains limited, hindering the development and utilization of this trademark type.
In light of this, several solutions need to be implemented promptly. These include incorporating specific legal provisions for sound trademarks into the Intellectual Property Law to facilitate easier registration and protection processes for businesses.
Additionally, regulatory agencies should invest in sound trademark examination systems, enhancing technical capacity and expertise to handle this type of trademark effectively. Awareness campaigns and educational programs should also be promoted to help consumers understand and recognize sound trademarks, encouraging businesses to invest in sound trademarks as valuable brand assets.
In the context of globalization, harmonizing regulations on sound trademarks between Vietnam and the international community is essential, creating opportunities for domestic and foreign businesses to protect their brands more effectively.
As Vietnam integrates deeper into the global economy, strengthening the protection of non-traditional trademarks like sound trademarks will be a significant milestone, enabling domestic brands to grow sustainably, safeguard their legal interests, and bolster their position in international markets.
ASL Law is a leading full-service and independent Vietnamese law firm made up of experienced and talented lawyers. ASL Law is ranked as the top tier Law Firm in Vietnam by Legal500, Asia Law, WTR, and Asia Business Law Journal. Based in both Hanoi and Ho Chi Minh City in Vietnam, the firm’s main purpose is to provide the most practical, efficient and lawful advice to its domestic and international clients. If we can be of assistance, please email to [email protected].
ASL LAW is the top-tier Vietnam law firm for Intellectual Property Services. If you need any advice, please contact us for further information or collaboration.
