Final Judgment of First Case Sound Trademark (2018 -10)

The final judgment of The Beijing High People's Court stated that the "Didididididi" sound mark applied by Tencent had significant differences and supported the QQ prompt tone registration trademark. This was also the first case of sound trademark that had been ruled in the field of trademark law.

Tencent applied for the "Didididididi" sound trademark (QQ message prompt tone) with the application number 14502527 in 38 categories on May 4, 2014. This trademark was designated to use on 10 service items including providing internet chatrooms, television broadcasting, message sending, etc. Regarding Tencent’s trademark application, the Trademark Office issued a rejection on the ground that "the applied trademark lacks distinctiveness in designated use items". Tencent filed a request for reexamination to the Trademark Review and Adjudication Board, and the Trademark Review and Adjudication Board issued a Decision of Reexamination for rejection on the ground that it was "difficult to distinguish the source of service."

Tencent appealed to Beijing Intellectual Property Court against the Trademark Review and Adjudication Board.  In April, Beijing Intellectual Property Court believed that the sound of disputed trademark as a whole had already served to identify the source of services for which it was designated, withdrawing the Decision made by the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board appealed to the Beijing Higher People’s Court against first instance’s decision.

The Beijing Higher People’s Court determined that the sound of "Didididididi" had the function of identifying the source of service through its long-term and continuous use on QQ and agreed the court of first instance’s decision that the application trademark had the distinctive features for trademark registration in regard to QQ related services.

This case is the first sound mark case that has been adjudicated by a judicial decision since the revised Trademark Law included sound into the scope of trademark registration on May 1, 2014. Beijing High People’s Court’s decision on the distinctiveness of said sound trademark plays an exemplary and guiding role for future cases of similar nature. 

(Adapted from Legal Evening News)