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The simplicity of the sequence of two sounds is not enough for the EU’s trademark for sound.

Brazilian media group Globo Comunicação e Participações filed a complaint against the European Union Intellectual Property Office’s (EUIPO) refusal of the registration forthe EU trademark in the form of a sound (ECJ Judgment of September 13ht, 2016 in T-408/15 case). The basis for the absolute refusal was… the simplicity of the sequence of two sounds.

The story began on April 28th, 2014, when the applying media group with its seat in Rio de Janeiro applied to EUIPO for the registration of a two-tone signal, labeled and presented in the form of notes, as shown below:


They were supposed to apply to goods and services included in classes 9, 16, 38, and 41 (digital media and computer software, office supplies and training services, television broadcasting, teaching, training and entertainment services, respectively).

Ordinariness and banality as an obstacle in registration

A month later EUIPO told the applicant that it did not agree to register the declared sound as a trademark because there is an absolute refusal of sounds indicated in art. 7 paragraph 1 point b) of Council Regulation (EC) No. 207/2009 of 26 February 2009 on the EU trademark (Journal of Laws of 2009, L 78, p. 1), i.e. the deprivation of any distinctive character. Additionally, the EUIPO pointed out that the presented sounds are ordinary and banal, and therefore can not be seen as an indication of the commercial origin of goods.

The applicant, in response to the expert comments argued this tone is a short melody, allowing it to be identified with their own goods and services. However, the application was rejected in whole, to which the applicant unsuccessfully appealed to EUIPO.

The Board of Appeal stated the sound signal meeting the conditions for registration must be:

– easily remembered by the consumer

– non-banal, and not without significance

– original and fanciful (not obligatory)

– distinguishable from other trademarks

EUIPO stated that the trademark submitted is similar in all respects to the banal and universal sound, and thus it cannot be madepossible to distinguish goods by the consumer. For assessing the distinctive character of the sound it is not sufficient that it has been written as notes, in the treble clef, in 4/4 meter, in the numerical determination of the rate of 147 quarter notes per minute (♩ = 147), the duplicate g’s sound, while, at the same time quarter note is stressed, then half note with a dot (three), which is extended for a whole note (four). Still for the musically uneducated consumer it will be a simple repeated sound.

The EU Court focused primarily on examining whether the sounds identify distinctive character under article 7 paragraph 1 point b) of Regulation 207/2009, which enables to recognize a particular product from a particular company from others and allows to make re-purchase of the same item, when it turns out to be a good one.


The distinctive character of the trademark – how to assess it?

The court ruled that the trademark must be assessed by referring it to:

  • goods or services for which the trademark has been applied
  • the perception of the relevant public

This is enough to be able to identify some minimum distinguishing the trademark from others. This feature is essential to demonstrate that a sound element can trigger associations of greater importance (the so-called “Mirror effect” – a combination of sound relating only to itself, and not to something else) than the usual banal combination of the created notes in a wide public, as well as for professionals whose level of attention varies from normal to high and which identify them as a trademark.

EU Court – final decision

The EU Court upheld the position adopted EUIPO and dismissed the complaint of the Brazilian company in its entirety. The justification stated that the sound trademark, which is characterized by excessive simplicity and limited to a mere repetition of two identical notes, can not as such carry the message that consumers could recall. This in turn results in no recognition of the sign by consumers as a trademark unless it has acquired distinctive character through use.

The trademark indicated by the applicant in the court’s opinion is therefore limited to sound of an alarm bell or a telephone, regardless of the used context and used media. This signal does not permit the demonstration of intrinsic properties of the repeat notes, from which it was created, and which distinguishes it from something other than said alarm bell or telephone.

The court in the justification also stressed that the described sequence of notes may be perceived by consumers as a normal function in the goods or services, without indicating the source of trade (especially in relation to television broadcasting where it can be perceived as indicating the beginning or end of a TV program).

The full text of the ECJ judgment of September 13th, 2016 in T-408/15 case is available at:


#ECJ #euipo #music #notes #sound trademark #trademarks

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