A sound mark is a mark consisting exclusively of a sound or a combination of sounds. As of 2017, it is possible to represent sound marks by submitting an audio file in MP3 format to be included in the multimedia trademark register.
In 2018, a European manufacturer of glass and metal packaging for the food and beverage industry filed with the EUIPO an application for a sound mark containing a sound combination made by opening a beverage can:
The mark sought protection for various beverages as well as metal containers for storage and transportation.
Following the official examination by the EUIPO, the application was rejecteddue to its lack of distinctiveness (Art 7 (1) (b) EUTMR) and was denied trademark protection. The EGC confirmed this decision essentially based on the following reasoning:
- The food industry is characterized by strong competition. Therefore, market participants are faced with constraints in packaging their goods for marketing. There is thus a considerable incentive to differentiate their goods in order to attract consumer attention.
- A sound mark must have a certain resonance or recognition value to be considered an indication of origin from a particular company.
- In the present case, however, the sound sign is perceived merely as a purely technical and functional element, because the opening of a can or bottle is an obligatory part of a specific technical solution in the context of handling beverages for the purpose of their consumption, regardless of whether these goods contain carbon dioxide or not.
- The sound of fizzing is an indication of the characteristics of the goods covered by the mark and not an indication of commercial origin.
- The case law according to which a (three-dimensional) sign must significantly depart from the norm or customs of the relevant sector, is generally not applicable to sound marks.