The European Court of Justice gave a ruling for the first time on the registration of a sound mark submitted in audio format ( Case T-668/19, 7.7.2021). According to the court’s judgment, an audio file containing the sound made by the opening of a drinks can, followed by silence and a fizzing sound, cannot be registered as a trade mark in respect of various drinks and for metal containers for storage or transport, in so far as it is not distinctive.
The applicant company filed an application for registration of a sound sign as an EU trade mark with the European Union Intellectual Property Office (EUIPO). That sign, submitted as an audio file, recalls 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.
Registration was sought in respect of various drinks and metal containers for storage or transport. EUIPO rejected the application for registration on the ground that the mark applied for was not distinctive.
In its judgment, the Court dismissed the action brought by the applicant and gave a ruling for the first time on the registration of a sound mark submitted in audio format. It clarified the criteria for assessing the distinctive character of sound marks and the perception of those marks in general by consumers.
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