The sound of a can opening followed by several seconds of fizzing cannot be a trademark, according to the General Court of the European Union. This is the first decision of its kind regarding a sound mark presented in audio format.
Ardagh Metal Beverage Holdings, a German can manufacturer, had applied to register the noise made by its fizzy drinks cans. The application was rejected on absolute grounds, given it was not deemed distinctive.
In the words of the court, the sound made by a drinks can being opened, followed by a silence of approximately one second and a fizzing sound lasting approximately nine seconds does not qualify to be a trademark. It is noted there is nothing characteristic about this, since this sound does not depart from the norm or the customs in the sector.
This case is the first decision of its kind around sound trademarks submitted in audio format in the EUIPO, something only possible since 2017 (before only graphical representations were allowed). This said, sound trademarks are not proving particularly popular with this European institution. At time of writing, only 313 sound marks have been registered, representing 0.02% of all signs. Most of them are registered in the traditional notation style:
The decision is attracting a lot of attention precisely because of the novelty of the format and the assessment required. It still remains to be seen whether the elimination of the requirement of "graphic representation" of sounds will help sound marks take off in the EU space, or if they will remain a rarity.
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Esquivel & Martin Santos
Trademark, Patent and IP law firm in Spain
www.emps.es