Non-traditional marks are one of the many ways that brands can be protected. Whenever a sound reminds you of a product or service of certain business origin, it is likely a trademark. In the Andean Community, non-traditional marks may be protected as long as they can be graphically represented and the combination of different elements function as source identifications for different products or services in the market. Andean Decision 486 states: “Article 134. – For purposes of this system, any mark that is capable of distinguishing goods and services on the market shall constitute a trademark. Marks that are capable of graphic representation shall be eligible for registration as trademarks.(…) The following marks, among others, shall be capable of constituting a trademark: c) sounds and scents”
However, even though the protection of soundmarks is expressly recognized, these are not traditionally protected types of marks. Thus, the procedure is not always known to the examiners. The IP Office has different policies through different times. Sometimes they are innovative and in favor of protecting these marks in a straightforward procedure, and sometimes they become bureaucratic due to lack of knowledge or insecurity on how to proceed. In any of the cases, it is important that the applications are correctly filed and described to avoid lengthy procedures.
This time, Nokia protected its iconic boot up tune as a sound mark in Ecuador. The application displayed a graphic representation of the musical staff in the field of the design, and the mp3 file with the soundmark was attached to ensure the examiners had all the elements on hand. The mark rapidly passed the formal exam and it was published in the gazette. The publication featured the musical staff so that third parties could know what was being registered. No oppositions were filed, and the registrability exam was also straightforward.
On January 18, 2022 the mark was allowed for registration, and on July 19, 2022 the Servicio Nacional de Derechos Intelectuales de Ecuador, SENADI issued registration I-9029-2022 to grant the protection of the NOKIA BOOT UP TUNE sound mark with an expiration of January 18, 2032. Another win for our clients!
