Beverage can opening sound cannot be an EU trademark

The General Court of the European Union has ruled in case  T‑668/19 Ardagh Metal Beverage Holdings GmbH & Co. KG v EUIPO.

This is probably the first case where the EU Court gives its opinion on the distinctive character of sound marks.

The dispute started when Ardagh Metal Beverage Holdings filed a sound EU trademark for classes  6, 29, 30, 32, 33.

This mark represents a tingling sound of beverage can opening, you can hear it here.

The EUIPO refused registration on absolute grounds – lack of distinctive character.

According to the Office the criteria for assessment were similar to those for three-dimensional trademarks. From that perspective, the sound was characterized with “extraordinary simplicity” and “everydayness”.

What’s more, consumers could understand it only after purchasing not before that which meant that it could not be an initiative for such a purchase.

The General Court disagreed with two of the reasons stated by the EUIPO on the matter.

First of all, according to the Court any analogy with requirements related to three-dimensional trademarks is incorrect. Every word or sound mark can consist of a sign that exists independently of the product appearance.

The Court ruled out another of the EUIPO arguments for the refusal too. The fact that a sign can be perceived by consumers after the purchase doesn’t mean that it is not a reason for such a purchase put it simply.

At the end, however, the Court upheld the EUIPO position that the sound at hand cannot be a trademark because it is not distinctive. According to the Court this sound is very similar to classical sounds that beverages make when opened. From that point of view it cannot serve as a source of trade origin.

Source: Meyer-Dulheuer MD Legal Patentanwälte PartG mbB