Audio file containing sound made by the opening of drinks can cannot be registered as a trademark because it is not distinctive

13-07-2021 Print this page
Anouck Bakhuis

Trade Mark LawFrom the press release: "Ardagh Metal Beverage Holdings GmbH & Co. KG 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. 




Regarding that other ground, based on the perception of the mark applied for by the relevant public as being a functional element of the goods in question, the Court observes, first, that the sound produced by the opening of a can will in fact be considered, having regard to the type of goods, to be a purely technical and functional element. The opening of a can or bottle is inherent to a technical solution connected to the handling of drinks in order to consume them and such a sound will therefore not be perceived as an indication of the commercial origin of those goods. Second, the relevant public immediately associates the sound of fizzing bubbles with drinks. In addition, the Court observes that the sound elements and the silence of approximately one second, taken as a whole, do not have any inherent characteristic that would make it possible for them to be perceived by that public as being an indication of the commercial origin of the goods. Those elements are not resonant enough to distinguish themselves from comparable sounds in the field of drinks. Therefore, the Court confirms EUIPO’s findings relating to the lack of distinctive character of the mark applied for."


Read the full press release here


T-668/19 - ECLI:EU:T:2021:420