A sound image can fulfill the function of a brand, i.e. to differentiate the goods or services of one company from those of other companies. In this way, a sound image as a sound mark can be entered in the trademark register as a trademark . Only in the case of very long sequences of sounds can things change.
The problem with the sound mark - similar to the olfactory mark - is the requirement of graphic representability. For this purpose, the ECJ in its Shieldmark-Kist decision, with reference to the Sieckmann decision (ECJ, case C-283/01 and case C-273/00 ), repeated that a mark can only be represented graphically if if it is clear, unambiguous, self-contained, easily accessible, understandable, durable and objective. As a result of this decision by the ECJ, the DPMA amended the Trademark Ordinance. According to Section 11, Paragraph II of the Trademark Ordinance (MarkenV), the audio mark must now be represented in the usual notation, i.e. This means that it must also be possible to represent it in notation. Since the sound image alone determines trademark protection, the applicant for a sound mark must also submit a sound reproduction of the mark.
This has often met with criticism, because on the one hand noises cannot be represented in musical notation and, on the other hand, the notation also allows numerous realizations - for example tempos, dynamics, timbre, articulation, instrumentation. Until October 15, 2003, audio marks could still be submitted to the DPMA as sonagrams if a graphical representation in musical notation was not possible. Due to the extensive aids required to determine the sound image of such a sound mark, this option was deleted.
- Carsten Kortbein: Trademark protection for audio signs. Problems of practical use as well as registration, opposition and infringement proceedings . Lang, Frankfurt am Main et al. 2005, ISBN 3-631-54182-1 , ( Europäische Hochschulschriften 2, 4264), (At the same time: Munich, Univ. Der Bundeswehr, Diss., 2005).
- Stephan Bahner: The protection of acoustic brands according to the German trademark law and the European community trademark regulation Duncker & Humblot, Berlin 2005, ISBN 3-428-11736-0 , ( contributions to European business law 31), (also: Konstanz, Univ., Diss., 2004).
- Richard Landfermann: Cell phone ringtones in copyright and trademark law . V & R Unipress, Göttingen 2006, ISBN 3-89971-332-X , ( publications on German and international personality and intellectual property law 17), (also: Kiel, Univ., Diss., 2006).
- Joachim Novak: The representation of special brand forms. Sound mark, odor mark, movement mark . Stämpfli, Bern 2007, ISBN 978-3-7272-1881-1 , ( publications on media and intellectual property law 82), (also: Zurich, Univ., Diss., 2007).