The EUIPO resolves: a small jingle from a public transport company in Germany is not protectible

In a recent resolution of November 3, 2023, the EUIPO has once again decided on sound marks, in this case denying it.

The case began when, on March 15, 2023, BVG, the company responsible for operating public transport systems in Berlin, applied for the registration of a European trademark on a two-second sound.

The examiner denied the registration, stating that there was a lack of distinctive character since the public is not able to recognize a sound in the same way that it can recognize a figurative mark.

To be recognizable, sound must have its own character distinct from the functional elements for which it is used. In the absence of that element, the examiner denied the request.

This refusal was answered by BGV who, among other arguments, indicated that the sound was sufficiently complex, having up to eighteen different tones, being an artificial bell, different from the usual means of transport and whose meaning recalled the character of Berlin.

The EUIPO, however, did not share BGV's view and, instead, has indicated that the jingles are common in the transport sector and serve to attract public attention. Consequently, it is necessary for the sound to be even more remarkable for the public to associate it with the specific company regardless of whether the sound has been used before or not.