The sound of a can of beer or soda being opened, and its content then being poured into a glass. Everyone is able to picture (or hear) this sound, without having to actually hear it. In other words: it’s very recognizable! For that exact sound, the German producer of (among others) cans for soda and beer, Ardagh Metal Beverage, tried to acquire a trademark. In a recent judgement, the EU General Court gave its first ruling on the registration of a sound mark submitted in audio format.
Sound trademarks are nothing new
The possibility to register a sound as a trademark has been around for a while. For a long time, the standard in the EU used to be that it should be possible to display the sound in a graphical form (aside from the fact that the sound trademark should have distinctive character). Depositing an audio file was therefore not enough (since that is no graphical representation). If you wanted to register a sound mark, the reality was that you would have to deposit a staff at the European Union Intellectual Property Office (EUIPO), but even that was not always accepted. A famous sound trademark that was accepted by submitting a staff is for example “RICOLA”:
This (very well known) sound mark is also registered as a staff. Can you guess what it is?
Sound marks are taking off
Meanwhile, registering a sound mark has become a lot easier: simply by depositing an mp3-file. The requirement of a ‘graphical representation’ no longer exists. A (for the Dutch) well known sound mark is the Coolblue-whistle.
Another example of a sound mark that has recently been applied for is this sound mark by Hyperloop (the proposed high-speed mass transportation system designed by Elon Musk). Or this theme music for the British Premier League.
Car manufacturers have also become frequent appliers for sound marks. One of them is BMW. This sound trademark for example, is (I presume…) supposed to resemble an electric BMW pulling up. And this sound trademark seems like the decelerating counterpart. Is this sound trademark perhaps what people hear when starting the car? Or is it meant for switching the car off, and is this one for starting instead? In any case, BMW is busy with registering sound trademarks, as they also recently applied for an EU-trademark for this and this sound. And they are among many other car manufacturers that are doing the same, such as Audi and Volvo.
But: the opening of a can is not a legitimate sound trademark
Not every sound suffices as a sound mark. The well-known sonic logo of Netflix for example, was rejected by the EUIPO due to a lack of distinctive character. And now also the sound of the opening of a drinks can, followed by one second of silence and nine seconds of fizzing, has been rejected. It is the first time that the General Court has given a ruling on a sound mark submitted in audio format.
The opening of a drinks can and pouring the drink is not distinctive
Initially, the EUIPO had rejected the application due to a lack of distinctive character. The Board of Appeal subsequently rejected the appeal against this decision. Now the General Court has come to the same conclusion (although it did also decide that the Board of Appeal had applied the wrong criteria). According to the General Court, a sound mark should possess a ‘certain resonance which enables the target consumer to perceive it as a trade mark and not as a functional element or as an indicator without any inherent characteristics’.
According to the General Court, the EUIPO was right to conclude that the sound of the requested trademark holds a direct link with the claimed goods (beer, soda, etc.) and is inherently connected to their use. In other words: the sound of opening a drinks can and the subsequent pouring, is a logical and direct consequence of an act that is required to use the cans for their purpose (the consumption of drinks). Moreover, the average consumer will not consider the sound to be a trademark, but as a technical and functional element that refers to the goods in question (the drinks). The requested trademark is therefore not distinctive and the General Court concluded that the application had been rightfully rejected.