Sound Marks in Peru: Analysis and the Experience of a Practical Case

In the field of registered trademarks, sound marks introduce a new identifier of origin. Unlike traditional trademarks, which are built upon visual characteristics such as a logo or name style, sound marks consist of specific, non-conventional sounds that identify products or services and distinguish them from those of others.  

In Peru, the registration of sound marks has been approached tentatively in accordance with Decision 486 of the Andean Community and relevant Peruvian legislation. However, both technically and legally, the application of this type of trademark still has a long way to go. This article is dedicated to the study of a real case handled by INDECOPI related to the registration of a sound mark, as well as international cases that demonstrate the effectiveness of this mechanism worldwide. 

According to Article 134 of Decision 486 of the Andean Community, any sign capable of graphic representation or any other suitable form that clearly defines the object to be protected may be registered as a trademark. This article serves as the cornerstone for integrating sound marks into the intellectual property system, as it establishes that a sound can be a trademark as long as it can be represented and meets the distinctiveness criteria. 

Nationally, Legislative Decree No. 1075 supplements the community regulations, indicating that INDECOPI is responsible for registering trademarks, including sound marks. The INDECOPI Manual of Procedures for Distinctive Signs (2021) outlines the technical and procedural aspects for filing sound marks, such as the use of a digital audio file, a graphical representation (e.g., using a spectrogram), and a technical description of the sound. 

Resolution No. 016764-2020/DSD-INDECOPI concerns the registration of a sound mark requested by INDEXI DEL PERÚ S.A.C. This corporation sought to obtain a distinctive sound mark for a product line. The sound mark was accepted for having sufficient distinctiveness and commercial use, setting a favorable precedent for sound signs as distinctive marks in Peru. 

In this case, INDECOPI decided that the requested sound could be registered as a trademark, as it met the distinctiveness requirements established in Article 134 of Decision 486. The sound mark was submitted through a digital audio file and a technical description of its tone and characteristics, as required by Peruvian law. The registration lasted ten years, granting the company exclusive use of that sound in connection with its marketed products. 

Internationally, sound marks have been widely promoted. Some notable examples include: 

Intel (four-note jingle): One of the most recognized examples is Intel’s four-note jingle used in advertising since 1994.  

MGM (lion’s roar): Another classic example of a registered sound mark is Metro-Goldwyn-Mayer’s (MGM) lion’s roar. 

NBC (three chimes): The tritone interval of the NBC television network’s “chimes” is also a sound mark. 

Apple (startup chime): Devices from Apple, such as computers and smartphones, feature another globally recognized sound mark. 

One of the first challenges of sound marks in Peru is the graphic representation of sound. Musical notation or spectrograms may serve to describe simple sounds but fall short for abstract (e.g., electronic) or complex ones... 

Assessing distinctiveness is also a significant challenge. INDECOPI must determine whether the sound is merely descriptive of the good or service...

Despite the obstacles, the registration of sound marks has created important opportunities for Peruvian businesses seeking to stand out in the market...

In conclusion, sound marks in Peru represent a new phenomenon in the context of intellectual property...

 Autor: Evelyn Dueñas

References:

1. Andean Community (2000). Decision 486: Common Regime on Industrial Property. Decisión 486: Régimen común sobre propiedad industrial.
2. INDECOPI (2021). Manual of Procedures for Distinctive Signs.. Lima, Perú.
3. Resolution No. 016764-2020/DSD-INDECOPI, INDECOPI.
4. Resolution No. 016764-2020/DSD-INDECOPI, INDECOPI. (2020) Non-Traditional Marks: A Practical Guide..