Aug 25, 2021

‘Can’ you believe it?

The European Court of Justice has ruled an audio file containing the sound of a drinks can opening followed by silence and a fizzing sound cannot be protected as a trade mark.

In the European Union, sound marks are capable of being registered as a trade mark provided they meet certain requirements. Examples of popular sounds protected as trade marks include the MGM lion roar and the McDonalds “I’m loving it” jingle.

Ardagh Metal Beverage Holdings GmbH & Co. KG (“Ardagh”) applied for a sound mark for the opening of a drinks can. The EUIPO rejected the application for lack of distinctiveness. Ardagh appealed the decision but to no avail. The sound produced from opening a can is “a purely technical and functional element”, plus the relevant public will associate a fizzing sound with all fizzy drinks, not those produced by the applicant.

The Court confirmed the criteria for assessing distinctiveness of sound marks do not differ from other categories of marks. A sound mark can only be registered where the sound mark has a certain resonance, characteristics or distinctiveness which will enable the relevant public to perceive it as a trade mark.

If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.

Posted by: Megan Walker in: EU/International, Legal News, Trade Marks

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