Japan is to expand trademark protection to cover a further five categories of non-traditional trademarks, namely, Motion Mark, Hologram Mark, Color Per Se Mark, Sound Mark, and Position Mark, as from April 1, 2015 (in accordance with Law for Partial Amendment to IP Laws, Act No. 36 of May 14, 2014).
Applications for registration of these new types of trademarks will be accepted by the Japan Patent Office from 12:00 (midnight) of April 1. No transitional measures will be available.
Please note that accelerated examination and accelerated trial examination will NOT be available for these non-traditional trademark applications.
Please also be informed that sounds and colors can be protected only if they can function as trademarks. For example, a color is basically not registrable as a trademark since a color cannot normally make goods/services using the color distinguishable over the third parties’ goods/services. Instead, a Color Mark may be registered only if it has acquired distinctiveness through use thereof (Article 3, Paragraph 2 of the Trademark Law).
With regard to Sound Marks, the following sounds cannot be registered since they do not basically have distinctiveness: sounds commonly produced by goods (e.g. the ‘fizz’ of sparkling drinks); a single sound; sounds similar to natural sounds (e.g. synthetic sounds of running water); sounds recognized merely as music (e.g. BGM); and the like.
Notes for Filing Applications for Non-traditional Marks:
The applicant is required to specify that the mark applied for is a “Motion Mark,” “Hologram Mark,” “Color Per Se Mark,” “Sound Mark,” or “Position Mark” in the application form.
It is also required that a “Description of the Mark” be provided to explain the details of the mark applied for (excluding Sound Marks).
A properly-prepared sample or other kind of attachment should be provided according to the type of the mark; for example, a color specimen for a Color Mark, a CD-R or DVD-R storing MP3 sounds of a Sound Mark, or a staff notation for a Sound Mark is required.
For more details, please contact trademark attorneys of YUASA and HARA or refer to the below JPO websites (now available only in Japanese) and so on.