The GCEU rejects the application for registration of a sound mark

In its judgment of July 7, 2021 (case T-688/19), the General Court of the European Union (“GCEU” or the “General Court”) rejected the trademark application for the sound made by the opening of a beverage can on the grounds that it was not distinctive within the meaning of article 7(1)(b) of Regulation (EU) 2017/1001 on the European Union trade mark.

On June 6, 2018, Ardagh Metal Beverage Holdings GmbH & Co. KG (the “Company”) applied for registration of a sound sign as an EU trademark before the European Union Intellectual Property Office (“EUIPO”). The Company manufactures, distributes and sells packaging and cans. The sound sign submitted for registration was the sound made by the opening of a beverage can, followed by approximately one second of silence and a nine-second fizzing sound.

On January 8, 2019, the EUIPO examiner rejected the application on the grounds that the sound mark lacked distinctiveness. On July 24, 2019, EUIPO’s Board of Appeal dismissed the appeal against the examiner’s decision. The Company then brought an action for annulment before the GCEU.

The GCEU dismissed the company’s action, upholding the conclusions of EUIPO’s Board of Appeal. The General Court recalls that a trademark’s distinctive nature, within the meaning of article 7(1)(b) of Regulation 2017/1001, should identify the submitted product, associating it with its commercial origin and thus differentiating the product from other companies’ goods. According to the GCEU, considering the products involved, the sound of a beverage can opening should be considered a purely technical and functional element, since this sound, followed by silence and a fizzing sound, is predictable and usual in the beverage market.

The General Court found that the sounds and the silence lasting approximately one second making up the submitted sound sign, together, do not (i) make the sound mark identifiable by the target consumer as coming from a specific company or (ii) allow it to differentiate it from other companies’ goods.

The GCEU recalls that sound marks must have a certain resonance enabling the target consumer to perceive them as trademarks and not as functional elements without inherent characteristics.

Based on this, the General Court ruled that EUIPO’s Board of Appeal rightly concluded that the submitted sound sign lacked distinctiveness and dismissed the Company’s action.