QQ winner in China's first sound trademark case

Instant messenger app's notification jingle wins appeal to keep its rights

The Beijing High People's Court recently made the final decision on China's first sound trademark case, ruling in favor of QQ, one of the most popular instant messaging software services, launched by Tencent in China.

The appeal court upheld the original decision and said that the signature "Di-Di-Di-Di-Di-Di" notification sound has been used by QQ for a long time and has obtained the status of being a distinguishing feature of the service provider.

Since the sound has become famous among the public in the instant messaging sphere, it has established a firm and clear connection in the public consciousness to the QQ application's functions, including online chatting as well as transferring messages, pictures and other digital documents, according to the court.

Tencent began to apply for a trademark using the sound in 2014 yet was rejected for "lacking a distinguishing feature" in 2015.

The trademark administration said the sound "Di" can be commonly found in many electric products and cannot be used to specifically distinguish the service provider.

The company said its sound is not just a simple repetition. It provided the court with a spectral catalogue, frequency spectrum and oscillogram of the sound, as well as 152 documents from the National Library of China, to prove that the QQ notification sound had been used widely and for a long time, and could serve to distinguish the service provider.

Liu Huajun, an intellectual property researcher at Fudan University, said Tencent made the decision to protect the value of the product according to its long-term strategy.

"If it didn't apply for this trademark, there was the possibility that others may have imitated QQ's sound in other social communication tools someday."

However, he said the sound "Di-Di-Di-Di-Di-Di" was not distinctive enough. "Pushing the horn on your car can also make this kind of sound. Would that infringe their trademark?"

According to Liu, trademarks should serve to differentiate one product from another clearly, so they should avoid the general functions of similar products in the industry.

"The point is not to make customers feel confused," he said.

He suggested companies choose distinctive characteristics to register as trademarks.

Wu Xinhua, director of the intellectual property department of Beijing-based W&H Law Firm told China Intellectual Property News that different from traditional trademarks such as text and graphics, sound trademarks are distinguished by auditory properties, which have special demands in registration and rights protection.

He added it often takes a long usage time for a sound trademark to be distinguished, and the Trademark Office will ask for evidence of such.

Since sound trademark protection was written into trademark law in 2014, the question of which kind of sounds can be registered as trademarks has become a hot topic.

To date, the Trademark Office has received around 700 sound trademark filings, but only 22 had been approved by the end of 2017.

Those include the starting music of China National Radio.

chenmeiling@chinadaily.com.cn

(China Daily 11/15/2018 page17)