The sound a beverage can makes when it is opened cannot be protected as a trademark. This has been ruled by the European Court of Justice.
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The Irish producer of drinks cans and bottles Ardagh applied to the European Union Intellectual Property Office EUIPO for legal protection of a so-called sound sign. For that, it submitted an audio clip in which the sound of the opening of a metal drink can can be heard, followed by a one-second silence and a nine-second roar.
However, EUIPO rejected the application because the mark applied for did not allow Ardagh to distinguish itself from other products in the beverage sector. The company appealed the decision to the Court of Justice of the EU.
Ardagh is now failing there too. In its judgment, the General Court of the EU ruled that the sound mark has no distinctive character. The sound produced when a can is opened is “a purely technical and functional element” and the sound elements have “no intrinsic characteristic on the basis of which the relevant public can perceive it as an indication of the commercial origin of the goods”. it says, among other things. “These elements are not sufficiently succinct to distinguish themselves from similar sounds made by drinks.”
It was the first time that the General Court had to consider a registration of an audio fragment as a sound mark.
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