On the Examination Rules of the Distinctiveness of Sound Trademarks in China

Ge Zhangzhi Ma Hongrui

Abstract： With the continuous development of the economy and society and the continuous improvement of the efficiency of resource utilization， the status of non?traditional trademarks in the intellectual property system has also been improved. However， when an application for trademark registration is made， whether the trademark is traditional or not， the trademark administration department will focus on examining whether it has distinctiveness. Nowadays， different countries and regions have different theories and legal norms for the recognition and examination of trademark distinctiveness， but there is gradual convergence overall， and China has also constantly learned from the experience of other countries in the examination rules of trademark saliency. Starting with the current domestic legal rules on the recognition of trademark significance， this paper analyzes the status quo and existing shortcomings of the registration and determination rules of sound trademarks， and provides relevant suggestions for the improvement of the examination rules of the distinctiveness of sound trademarks in China.

Key words： sound trademark; trademark distinctiveness; censorship rules

CLC：D 923        DC：A                      Article ID：2096⁃9783（2021）06⁃0121⁃08

1 Introduction

The third major revision of China's Trademark Law， on August 30th， 2013， clarified the legal status of sound trademarks for the first time. However， since the implementation of the newly amended Trademark Law， the number of applications for registration of sound trademarks has been very small， which can be seen from the announcement data of the trademark administrative department. There were approximately 840 applications for the registration of sound trademarks by the end of 2020， and only 33 of them had been registered. Among the successfully registered sound trademarks， the QQ prompt tone "Di⁃Di⁃Di⁃Di⁃Di⁃Di" received the most attention. It should be noted that this trademark was through litigation， as the court ruled to revoke the trademark review and adjudication board's rejection review decision and asked it to make a new review decision， in order to obtain the registration qualification， instead of directly going through the substantive examination of trademark administrative department. The focus of the dispute in this litigation is also whether the trademark is distinctive or not[1].

In the trademark law of countries with a registration system， distinctness is the prerequisite and basis for the trademark to be registered and its right to be maintained[2]. Although China's current Trademark Law does not include all trademarks in the scope of compulsory registration， unregistered trademarks cannot naturally obtain the exclusive right to registered trademarks and thus obtain the protection of the Trademark Law; however this does not rule out its compliance with Civil Law， Copyright Law， Anti⁃unfair Competition Law， and other relevant laws to seek protection. For trademark users to obtain complete protection， it is most safe and beneficial to apply for trademark registration in accordance with the law. China's current rules for examining trademark registration include both formal examination and substantive examination， among which substantive examination refers to examining the legality， distinctiveness， and non⁃functionality of one trademark. In the review process， distinctiveness is the most important and most difficult to grasp. Many trademarks that have not been approved for registration are rejected by the trademark administration department because of "lack of significance". For sound trademarks that do not have visibility， "distinctiveness" seems to be more difficult to identify， and the reason for rejection is simpler and more subjective. However， this problem does not only exist in China， in fact， the distinctiveness of sound trademarks is difficult to accurately identify in all countries and regions in the world. From the perspective of China's current trademark registration system， the registration rules for sound trademarks focus on examining whether they have "acquired distinctiveness"， that is， "acquired distinctiveness after use"， and built the connection between signs and goods/services based on consumers' feelings. Although this rule ensures the opportunity for trademark applicants to prove distinctiveness as much as possible， the problems caused by the imperfect legislation are also prominent[3].

2 The Ontological Value of Sound Trademarks

In fact， the determination of the legal status of a sound trademark is closely related to the development of science and technology， which provides the carrier and communication tool for the sound trademark so that it can be connected with goods or services that are without intuitive and visual elements. In addition to having the general functions of trademarks， sound trademarks can also play a unique role by combining with visible trademarks， which is to break through the visual senses and give the public a certain psychological hint from the auditory sense， while better satisfying the market's demand for so?called freshness in emotion， and deepening the cognition of the related goods or services carried by the trademark. Because of this， the value of sound trademarks was unconsciously discovered and accepted by more and more people.

2.1 The Characteristics of Sound Trademarks

Trademarks are used to distinguish the goods or services of a certain operator from other operators. The acquisition of trademark rights allows the right holder to form an exclusive possession of the trademark and can obtain economic returns based on such possession. Compared with other types of trademarks， sound trademarks have the characteristics of invisibility， professionalism， and diversity in addition to the common features of trademarks such as exclusivity and economy.

Firstly， in the application and examination process of sound trademarks in most countries， the text or graphic illustration of the trademark is always taken as the key reference content， but the content is not the trademark itself. The non⁃visibility of the sound determines that the sound trademark has the characteristics of non⁃visibility. Secondly， because of its non⁃visual characteristics， the process of presenting sound trademarks on objective carriers must rely on certain technologies. At the same time， sound trademarks must be combined with electronic equipment and corresponding technologies to achieve the purpose of being perceived by the public， while related people also need relevant technical support when using or disseminating such trademarks. Although this strong professionalism has brought some difficulties to the review and the use of sound trademarks， the development of science and technology may eventually alleviate this contradiction. For example， at the stage of trademark preliminary examination and announcement， we can add a QR code generated， based on the audio map of the sound trademark to the trademark description， and relevant personnel could obtain its sound through the QR code while reading the text and graphic illustration. Thirdly， the sounds that constitute trademark elements come from a wide range of sources， including not only the sounds of nature， such as wind， water drops and animal calls， but also the sounds generated by human society， such as ringtones， music and electronic sound effects. It is precisely because of this diversity that most countries restrict the sounds that can constitute trademarks， to prevent the acquisition of absolute rights from having a negative impact on social development.

2.2 The Legal Confirmation of Sound Trademarks

China's Trademark Law was first passed in 1982 and formally implemented on March 1st， 1983. It has been amended four times so far， among which the last three important amendments were completed after China joined the World Trade Organization （WTO） and fulfilled the Agreement on Trade?related Aspects of Intellectual Property Rights （TRIPs） at the same time. According to Article 15 of TRIPs， any mark or combination of marks can constitute a trademark， as long as it can distinguish the goods or services of one enterprise from the goods or services of other enterprises. This statement is very open to the definition of trademarks， and has been generally adopted by all contracting states. In 2001， the first year of China's accession to the WTO， China added the content of trademark definition before Article 8 of the original trademark law， and changed the previous Negative Exhaustive Enumeration expression to Positive Open⁃type expression. Thus， the original Article 8 also became the content of "legitimacy" as it was later called.

In 2013， the third amendment of China's trademark law was completed， and it focused on modifying the content of Article 8 to further improve the open definition of trademarks， Firstly， the word "sound" was added to the listed trademark types， and the sound trademark formally appear in the legal provisions. Secondly， the word "etc." is added after the listed trademark types to show that the types of trademarks that can be registered are not exhaustive. It should be affirmed that the revision of the meaning of trademarks in China's Trademark Law is scientific and reasonable. Due to the continuous development of social resources and the continuous improvement of the level of science and technology， the formal carrier of trademarks is also constantly enriched， and the use of negative and exhaustive expressions has certain shortcomings in adapting to economic and social development， which will affect the stability of the law. As a non?traditional trademark， the determination of the legal status of a sound trademark also makes it possible for other types of trademarks， such as scent trademark， to be officially included in China's legal provisions. This not only shows the scientificity and rationality of China's law， but also contributes to China's construction of an Intellectual Property Power.

2.3 Rationality of the Existence of Sound Trademarks

The open expression of the meaning of the trademark is not the first in TRIPs. The Lanham Act （1946） in the United States clearly contains "any words， names， symbols， and devices that can identify and distinguish the source of goods or services， as well as their combination" can constitute a trademark. In 1995， after the Supreme Court of the U.S.A. made the interpretation that "there is no special law prohibiting color itself as a trademark" in the judgment of the case of Qualitex Co. v. Jacobson Prods. Co.， the judicial and academic circles of the U.S.A. gradually recognized the principle that "constituent elements" could not restrict trademark registration[4]. The specific provisions of the relevant trademark acts of the U.S.A. provide certain guidance for the formulation of TRIPs and other countries' trademark laws. Firstly， it clearly pointed out the function of the trademark， that is， to identify and distinguish the source of goods or services. Secondly， the listing of the constituent elements did not adopt a completely comprehensive and closed expression， which gave the trial agency great discretion. Finally， under the simultaneous action of both positive and negative aspects， it emphasizes the importance of the intrinsic function of a trademark， thereby indirectly denying the restrictive effect of trademark components on trademark registration. It can be seen from this fact that the constituent elements of a trademark are not directly related to the function of the trademark itself， or that how the trademark changes in form do not directly cause changes in its intrinsic essence. Excessive emphasis on the constituent elements is actually like "putting the cart before the horse".

However， the constituent elements and the function of a trademark cannot be completely separated. Firstly， a trademark is a kind of intangible intellectual achievement， and it cannot be perceived by people actually without the constituent elements as its form of expression. Secondly， the constituent elements of a trademark are directly related to the determination of its carrier. For example， a literal trademark can be expressed in writing， a three⁃dimensional trademark can be expressed in a material object， and a sound trademark can be expressed in other intermediaries， but there is no element without a carrier. Thirdly， the constituent elements can often affect the function of the trademark， that is， the easier the element is to be intuitively perceived， the stronger the possibility of its carrier being accepted， thus making it easier for the trademark to perform its function. The concepts and content of traditional trademarks and non?traditional trademarks are determined based on the constituent elements of trademarks[5]. This division method is proposed by the Singapore Treaty on the Law of Trademarks （STLT）， and its purpose is not to strictly distinguish the types of trademarks and treat them differently， but to give non⁃traditional trademarks legal status through certain legal norms and to realize universal protection. Precisely because of these links between constituent elements and trademarks， it is not improper to focus on restricting trademark elements under the circumstance of lack of legislative experience. However， in the context of international exchanges and mutual learning of legal rules， timely removal of the tightness of trademark constituent elements may make domestic legislation more scientific and reasonable. This also provides a reasonable basis for the recognition of sound trademarks in our country's legislation.

3 Recognition of the Distinctiveness of Sound Trademarks

Article 9 of China's current trademark law explicitly stipulates that a registered trademark "should have distinctive features and be easy to identify"， while Article 11 and Article 12 correspondingly describe the situation that it does not have distinctive features. Seen from the content of the article， Article 9 is a principle stipulating that the requirement of distinctiveness is easy to identify， and the so⁃called identification， that is， recognition and distinction， can be specifically expressed as "recognizing the connection between the trademark and the goods or services， and distinguishing it from other goods or services"， both of which are indispensable.

However， what needs to be pointed out is that from the perspective of the function of a trademark， "recognition" is only a means， and "distinction" is the purpose. Therefore， some scholars have proposed that the distinguishing function of trademarks helps trademark owners to sell goods or provide services， and also helps consumers to choose between the same or similar goods or services. Therefore， in order to exert the distinction function of the trademark， the trademark must be distinctive[6]. Some scholars further pointed out that according to the way in which distinctiveness is generated， distinctiveness can be divided into three situations： inherent distinctiveness， acquired distinctiveness， and lost distinctiveness[7]; according to the strength of distinctiveness， trademarks can be divided into fanciful trademarks， arbitrary trademarks， suggestive trademarks and descriptive trademarks[8]， where the first three types of trademarks have inherent distinctiveness， while the distinctiveness of descriptive trademarks can be acquired through use. In fact， the origin of this classification standard was the Map of Distinctiveness proposed by the American judge Henry Friendly in the case of Abercrombie & Fitch Co. v. Hunting World， Inc. in 1976， which gave rise to the Abercrombie Taxonomy. Although this method takes word trademarks as a reference， it can be applied to the recognition of the distinctiveness of other trademarks.

3.1 Recognition Rules of Foreign Sound Trademarks

Sound trademarks mainly identify the characteristics of goods or services through hearing， which makes it difficult for countries and regions to determine their distinctiveness. The successful registration of sound trademarks is not common even in the U.S.A， where the legal status of sound trademarks was determined earlier. However， in practice， the country has also provided valuable experience， such as the secondary meaning theory proposed according to the inherent distinctiveness classification method， which has been widely accepted by subsequent countries. In the specific identification procedure， the United States Patent and Trademark Office （USPTO） does not strictly require the applicant to provide the attached drawings， but only to submit the relevant carrier. Australia also stipulates in its Trademark Manual of Examining Procedure that a sound trademark must contain a graphic representation of the trademark[9]. At the same time， a simple text description can also be used to replace the illustration. However， the European Union has a stricter examination of the distinctiveness of sound trademarks. The EU Trademark Regulation clarifies that "written description" is a necessary condition for the application， that is， the applicant must make a certain written description of the trademark when submitting the application， including recording the sound melody with a staff musical notation， and explaining the content of the sound with nouns， etc. In the legislative process of examining the significance of sound trademarks， China has gradually absorbed the experience of the above system， but from the perspective of the current legal provisions， there are still some problems， such as unclear standards and imperfect systems.

3.2 China's Sound Trademark Recognition Rules and Existing Problems

At present， the Trademark Law amended in 2019 plays the role of substantive law in trademark examination activities， and the specific examination procedures and standards are regulated by the Implementing Regulations of the Trademark Law and the Standards for Trademark Trial and Examination. The most special part Sound Trademark Examination stipulates the specific rules of sound examination， including formal examination and substantive examination. It also expressly stipulates that the general provisions on all trademarks are applicable to sound trademarks at the same time. This provision also clearly states that sound trademarks must undergo "long⁃term use" to acquire distinctive features. The content of the legal norms also implies the main issues of examining the distinctiveness of sound trademarks in the following three significant ways.

Firstly， the above⁃mentioned norms divide the sounds in sound trademarks into "musical" and "non⁃musical"， so as to impose different requirements on the paradigm of trademark applications， but it also leads to the phenomenon of unclear definition. The concept similar to "non⁃musical sound" is actually not comprehensive， and logically refers to the non⁃musical sound after excluding the musical sound. The boundary is extremely vague. And since it is divided by whether it is musical or not， sounds such as "both musical and non⁃musical" can basically cover all sounds， and the boundary will become broader. Obviously， such a classification standard is extremely limited.

Secondly， although the above⁃mentioned norms only list situations where there is no inherent distinctiveness， they actually deny the inherent distinctiveness of sound trademarks. In practice， similar word trademarks and graphic trademarks can convey certain information through the elements of visibility， while sound trademarks are basically unable to convey information related to goods or services intuitively due to their own limitations， otherwise， they may be identified as advertising slogans or may be directly denied their distinctiveness. Therefore， the expression that sound trademarks can only be acquired through long⁃term use has a certain rationality， and the specification not only outlines the loss of inherent distinctiveness， but also makes the statement that sound trademarks can acquire significant features only after long?term use in general， which actually puts a double yoke on the application of sound trademarks.

Thirdly， according to China's current trademark substantive examination system， the determination of "acquired distinctiveness" mainly comes from the corresponding certification materials provided by the applicant， while the trademark administration department only makes suggestions and then conducts passive written examinations， this is likely to cause difficulty for the applicant to grasp the data materials to be provided， and even the opportunity for the phenomenon of data materials fraud. In addition， the Trademark Law clearly stipulates that the applicant can file a reconsideration when dissatisfied with the examination opinion， and the remedy can be filed for litigation if they are dissatisfied with the results of the reconsideration. This not only fully protects the rights of the applicant， but also lays down hidden dangers for malicious litigation.

Although the regulations and systems related to the registration of sound trademarks have been being improved， the inherent lag of the law is not just to fix loopholes that can be hedged. It is necessary to constantly summarize theories and construct the overall framework of legal norms to form a complete system， which is exactly the direction of research.

4 Suggestions on Improving the Examination Rules for the Distinctiveness of Sound Trademarks

From the legislative purpose of China's Trademark Law， we can see that the determination of relevant rights of registered trademarks is not only to protect the rights and interests of trademark applicants， but also to protect the interests of consumers， producers and operators， and to promote the development of a socialist market economy. Moreover， compared with copyright and patent right， trademark right has no similar situation of fair use or statutory license， and exclusivity is very strong. Therefore， the substantive examination of trademarks is not only related to the protection of the applicant's rights， but also includes respect for the interests of other interested parties. If the standard of distinctiveness is not strictly controlled， it is very likely that the scope of trademark protection will be expanded， which may cause irreversible and serious consequences for consumers and other producers and operators. The entire process of trademark registration involves three aspects： application， examination， and reconsideration. Although the examination is the most important link， the other two items are considered together to ensure the reasonable conduct of the examination. Therefore， when making recommendations on the examination rules， it is not only against the rules themselves， but they may not be partial to the application and relief links.

4.1 Suggestions on an Application for a Sound Trademarks

Article 13 of Implementing Regulations of the Trademark Law stipulates that those who apply for trademark registration with sound signs shall make a declaration in the application， submit sound samples that meet the requirements， describe the sound trademark applied for registration， and explain the way of the use of the trademark. To describe a sound trademark， the sound applied for as a trademark shall be described in a staff or numbered musical notation and a text description shall be added; if it is impossible to describe in a staff or numbered musical notation， it shall be described in words; the description of the trademark and the sound sample shall be consistent. It can be seen that this provision is not improper in the expression， and its purpose is to make the applied sound trademark appear objectively in writing as much as possible， but the problem is that the provision is too simplistic in terms of description in words. Sound trademarks are indeed invisible， but their objectivity cannot be denied. Specifically， sound trademarks should also exist objectively， just like word trademarks or graphic trademarks. They can be copied in their entirety and disseminated， which requires the description of sound trademarks to be as objective as possible. In other words， no matter any individual or organization， if equipped with the appropriate tools or carriers， can show the trademark exactly according to the content expressed in the words of the sound trademarks， and hence it has a certain degree of objectivity.

In practice， including the cases listed in the Standards for Trademark Trial and Examination， a large number of modifiers can be seen， and the modifiers are more subjective expressions. Even the applicant who applies for a trademark cannot fully reproduce the trademark based on such modifiers. The increase of modifiers can easily lead to the ambiguity of the scope of trademark protection， leading to arbitrary expansion of exclusive rights. This should be eliminated. Therefore， from the preparation of the application， the relevant rules should be clear， and the content of text expression must be objective， with fewer or no modified words. If it is difficult to express in writing， an audio map can be generated with the help of corresponding equipment or software， i.e.， the audio map can be also reversed through equipment or software into the sound it refers to.

In addition， legislation should also clearly stipulate prohibitions on general sounds and functional sounds. Specifically， the concept and type of general sounds should be classified in detail and their inherent distinctiveness should be excluded， while functional sounds should also be listed in detail and excluded from their acquired distinctiveness. For example， Tencent's QQ prompt tone "Di?Di⁃Di⁃Di⁃Di⁃Di" cannot be allowed to register on alarm clocks， timers and other commodity categories regardless of the degree of use[10]. This has played a role in safeguarding the source of the distinctiveness examination of sound trademarks.

4.2 Suggestions on Relevant Rules in Substantive Examination

At present， the domestic and foreign laws and regulations all use consumer experience， as the bridge to determine acquired distinctiveness and the loss of distinctiveness， is also inextricably linked to the public perception[11]. This approach can indeed reflect the legislative purpose of the trademark law， but it also brings many questions. Firstly， whether consumers have the obligation to provide their own inner feelings for applicants is a problem. Even if consumers are willing to provide， as a "feeling"， it has strong subjectivity. It is also doubtful whether it can objectively and truthfully reflect that the trademark has acquired significance. Secondly， "consumer" is a group concept. How to correctly grasp the object it refers to is extremely difficult. China uses the word "relevant public" instead of "consumer"， but there is no consensus on what is "relevant public". Thirdly， conceptually speaking， the premise of the emergence of "relevant public" lies in the formation of a "relevant market". At any time， no matter how far the market economy develops， there are always goods or services first and then groups consuming such goods or services. It is insufficient to ignore the special role of the relevant market for the determination of distinctiveness.

Therefore， in the process of examining the acquired distinctiveness of a sound trademark， we should first define the relevant market formed by the goods or services on which the trademark is used， and consider whether the trademark has undergone substantial long?term use according to the market proportion， sales volume and other objective contents of the goods or services. The specific definition of the relevant market can be comprehensively considered in accordance with the relevant regulations in the economic law.

In addition， the law should also further clarify the legal status and content of the Notice of Examination Opinions on Trademark Registration Application. Firstly， the statutory and discretionary content of the Notice should be clarified. Specifically， the statutory content of the Notice can be clarified based on the commonness of trademarks， that is， the relevant materials that must be submitted for all trademarks applying for registration. This statutory content shall list in detail the relevant materials involved in the way of exhaustive enumeration and explain them pertinently. At the same time， its discretionary content shall be clarified based on the personality of various trademarks， and general expression can be adopted to give the applicant enough space to provide corresponding materials. Secondly， the legal status of the Notice should be at the same level as the application form. The positioning of the opinion in China's Trademark Law is only the reference opinions issued by the trademark administration department to the applicant， and as it does not require the applicant to provide documents to the trademark administration department in strict accordance with the contents listed in the opinion， this has caused serious interference in the substantive examination. The contents listed in the opinions are an important basis for the trademark administrative department to conduct substantive examination of trademarks. For the applicant， the corresponding supporting materials shall be submitted in strict accordance with the Notice， so whether the trademark is registered or not， the applicant can seek reasonable relief. For the trademark administration department， the materials submitted by the applicant in accordance with the Notice are of great value during the substantive examination， and shall be tried step by step in accordance with legal procedures. Even if the trademark is not recognized as significant， the facts can be explained according to the Notice and supporting materials to avoid the waste of judicial resources， the occurrence of malicious litigation， or abuse of litigation.

4.3 Suggestions on the Reconsideration Procedure

It is undoubtedly reasonable to take the court judgment as the last remedy， however the malicious litigation and false litigation are too numerous to list. In the relief rules of substantive examination of sound trademarks， in order to prevent unnecessary cases from entering the judicial procedure and effectively avoid the waste of judicial resources， the reconsideration procedure should be strengthened. In terms of the process of the registration of sound trademarks， the applicant and the trademark administration department are the ones who know the truth best. If the rights and interests of the applicant can be fully protected within this scope， the court can be reduced to mediate the judgment. After the applicant submits the application for registration， the Trademark Office shall conduct a formal examination and substantive examination， and make a decision on whether the application can be registered[12]. The Trademark Review and Adjudication Board is responsible for the follow?up procedures of trademark registration examination， objection examination， revocation examination. The functions of the Trademark Office and the Trademark Review and Adjudication Board are interrelated and they restrict each other. They together constitute the management system of trademark examination. The reconsideration procedure， as the last guarantee before the appeal of stakeholders， should also be continuously improved.

Specifically， it is necessary to further use scientific and technological means to master big data， classify the received cases in detail on the basis of implementing the electronic registration of reconsideration cases， and strive to realize the accurate retrieval function of the same cases and the statistical analysis function of types of cases， such as establishing a database for sound trademark reconsideration cases， focusing on analyzing the common issues of the cases and summarizing the rules of reconsideration cases. Secondly， although the special application of administrative reconsideration in the Office Automation System of the former State Administration for Industry and Commerce has been officially launched in 2016， aside from the impact of institutional reform， there are still problems such as incomplete data statistical functions and inaccurate review reminders. The informatization construction of administrative reconsideration still needs to be improved. At the same time， it is also necessary to further strengthen the publicity of administrative reconsideration， cooperate with such varied means as electronic registration of reconsideration cases and big data analysis， and a timely push relevant information to those in need of reconsideration in the form of data messages. For the reconsideration cases of sound trademarks， the procedural problems that have occurred frequently in the past are pushed to the relevant persons through big data comparison， which can not only avoid the aimlessness of the reconsideration applicant， but also improve the efficiency of reconsideration as a whole.

In addition， it is necessary to further improve the professional level of the staff of the reconsideration agency， master scientific and technological methods such as big data analysis， and combine a series of links of trademark examination to achieve review by law and reasonable appraisal. The rejection decision should be transparent， open， legal， and lawful. At the same time， it should have a certain judgment on rapidly changing science and technology， take the initiative to learn new technologies and apply them flexibly in practice. In addition， each rejected application and reconsideration case not only has a certain guiding role for relevant persons who need to apply for trademarks in the future， but also valuable learning materials for human resources. In addition to having a detailed reserve of legal knowledge， the staff of the reconsideration agency should also deeply analyze the more important cases in the past， update their knowledge in time and use their knowledge flexibly. For the reconsideration of sound trademarks， more attention should be paid to strengthening the professional level of staff and the ability to learn new technologies. As a non?traditional trademark， the sound trademark has broken through the limitation of visibility. The renewal and iteration of its carrier and communication means are closely related to the development of science and technology. Therefore， in the reconsideration process， in addition to the reasons for refusal by the Trademark Review and Adjudication Board， the decision should also refer to many parties in real life， to ensure that the applicant's legitimate rights and interests are protected to the greatest extent.

5 Conclusion

China has clarified the legal status of sound trademarks， and also explained the examination standard of a sound trademark in relevant laws and regulations， but the relevant rules are not perfect yet， and the relevant contents of application， examination and reconsideration of sound trademark need to be further improved. As scholars have said， the first consideration for legislators should be the value of departmental law， and dissecting a sparrow in detail is better than touching an elephant with a blind man unilaterally. In the future development of the trademark law， it is inevitable that non⁃traditional trademark rules will be amended in detail. In the future revision process， as an effective gradual process， sound trademarks can be used as a main reference， and the examination standards for their distinctiveness may be appropriately applied to other non⁃traditional trademarks.

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论我国声音商标显著性审查规则

葛章志 马红睿

（中国科学技术大学 知识产权研究院，合肥 230026）

摘    要：随着经济社会的不断发展，资源利用效率的不断提高，非传统商标在知识产权体系中的地位也随之提高，但既为商标，无论其传统与否，在申请注册时商标行政管理部门均会着重审核其是否具备显著性。对于商标显著性的认定与审查，当今各国和地区有着不同的理论和法律规范，而总体上逐渐趋同。我国在商标显著性的审查规则上也不断借鉴他国的经验。文章从当前国内关于商标显著性认定的法律规则入手，分析声音商标注册和认定规则的现状及存在的不足，为我国声音商标显著性审查规则的完善提供相关建议。

关键词：声音商标;商标显著性;审查规则