On April 1, 2015, the Trademark Act 2014 has been amended to broaden the scope of trademark protection in Japan to encompass the following:
– Trademarks consisting of sounds, colors, holograms, motion and position;
– Regional collective trademarks.
However, the registration of olfactory and taste marks remains unfeasible in Japan.
As concerns sound marks, registration was already acknowledged by the former Japanese law for simple or musical sounds. Henceforth, the protection will be extended to very brief sound clips, provided that the marks are represented by a sound spectrogram or a musical score. On the other hand, music titles or composers names cannot be protected as trademarks.
The Japanese Patent Office also makes it clear that to register one or more colors as a trademark, the application must include a drawing or a picture indicative of the color or colors. However, the application for such a trademark will not be accepted if letters or numbers can be identified on the drawing or the photo.
This type of new trademarks is problematic with regards to the function of the trademark: it may be difficult for consumers to recognize them as indicators of the origin of the products or services. In this respect, the issue at stake is the manner in which the Office will assess the distinctiveness of these trademarks. Trademark applications based on a single color, the color which enhances the design of the product or a natural sound will likely be examined carefully by the Japanese Trademark Office.
The new trademark system provides an opportunity for rights holders to rethink their strategies.