The sound that a drink can make when opened cannot be shielded as a trademark. This was ruled by the European Court of Justice.
Irish beverage can and bottle maker Ardagh has applied to the European Union Intellectual Property Office (EUIPO) for legal protection of the so-called sound mark. So, I made an audio clip in which the sound of a mineral drink opening could be heard, followed by a one-second silence and a nine-second roar.
However, the European Intellectual Property Office rejected the application because the mark it requested 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 European Union.
Ardagh fails now there too. In its ruling, the General Court of the European Union ruled that the sound mark does not have a distinctive character. The sound produced when the box is opened is a “purely technical and functional element” and the sound elements “have no intrinsic property on the basis of which the relevant public can perceive as an indication of the commercial origin of the goods”. He says, among other things. “These items are not brief enough to distinguish themselves from similar sounds that drinks make.”
This was the first time that a general court had to consider recording an audio clip as a sound mark.
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