No sound mark for sound, silence and fizzing when opening beverage can

A sound can be registered as a trademark just like a word, picture, color or shape. Recently, the General Court of the EU ruled for the first time on the application for a sound mark via an audio file at the European Union Intellectual Property Office (EUIPO).

The sound applied for in the recent ruling recalls the sound made by opening a beverage can, followed by a silence of approximately one second and fizzing of approximately nine seconds.

The EUIPO rejected the application. In itself, a sound mark can be registered with an audio file or in musical notation. But a sound mark, like any other mark, must have distinctive character. In other words, it must have the ability to identify the commercial origin of the goods or services offered under the mark. In this case, however, according to the EUIPO, the sound mark applied for is inherent to the use of the goods in question (namely various beverages and metal containers).

The General Court of the EU concurs with the judgment of the EUIPO, pointing out that the sound will be considered as a purely technical and functional element. Indeed, the opening of a can or bottle is “inherent to a technical solution connected to the handling of drinks in order to consume them”. The nuances in terms of the duration of the silence and the duration of the fizzing do not constitute distinctive character after all. In fact, the combination of the sound elements and the silence element corresponds to the foreseeable and common elements in the beverage market. According to the General Court, the relevant public will also “immediately perceive the fizzing sound of bubbles as a reference to beverages”.

The General Court also states, more generally, that the distinctive character of a sound mark cannot be assessed by analogous application of the specific criteria from case law for three-dimensional trademarks (in which appearance or shape of the goods play a role).

In short, a sound must have identifying power in order to be registered as a trademark, meaning that it can be recognized as originating from a certain company. The sound in this case, which recalls the opening of a beverage can, does not have that identifying power.

Should you have any questions pursuant to this article, please contact Eva van Groezen, Evelyn Peerboom-Gerrits or Ernst-Jan Louwers.

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