The General Court of the European Union (“Court”) considered that the European Union Intellectual Property Office (“EUIPO”) sound mark application that consists of the sound opening a drink can and a following fizzling sound, as lack of distinctiveness in terms of the goods that the application was filed for.
In the decision, the Court made an evaluation by also referring to the case laws regarding different types of trademarks, on points of (I) the distinctiveness of the sound mark, and (ii) whether the sound may be perceived as a trademark by consumers.
The details of the Court’s decision are as follows:
- Evaluation criteria for sound marks do not differ from other types of trademarks and the sound of the subject to the application should be perceived as a trademark without any additional elements, in order to be registered as a trademark.
- The sound should be perceived as the origin of the goods that the sound mark is used on, rather than a technical and functional element for the goods.
- The sound of opening a tin can or bottle is a technical and functional element as a requirement for consuming the goods. The fizzling sound is included in the application may make the consumer group associate the sound with other goods in the field of drinks. However, the subject elements are not sufficient to differ from the other drinks.
- In this regard, the subject trademark application is not distinctive, and it is not likely to be perceived as a commercial origin for the related goods.
In light of the above grounds, the Court concluded that the subject sound mark is not distinctive, and it is not likely to be perceived as a commercial origin for the related goods.
Please see the brief summary of the decision dated 7 July 2021 and numbered T-668/19 from the given link.
