Ardagh Metal Beverage Holdings GmbH & Co. KG applied to the European Union Intellectual Property Office (EUIPO) for registration of a sound sign as an EU trade mark. This sign, represented by means of an audio file, is reminiscent of the sound made when opening a beverage can, followed by about one second of no sound and a tingle of about nine seconds. Registration was sought for various metal beverages and containers for storage and transport.

The EUIPO rejected this application, reasoning that the mark applied for was devoid of any distinctive character.

In its judgment, the General Court of the European Union dismisses the action brought by Ardagh Metal Beverage Holdings and expresses its opinion for the first time on the registration of a sound mark represented in audio format. It explains the criteria for assessing the distinctiveness of sound marks and the perception of such marks in general by consumers.

In its reasoning, the court points out that the criteria for assessing the distinctiveness of sound marks are no different from those applicable to the other categories of marks. Furthermore, a sound sign must have a certain resonance by virtue of which the targeted consumer can recognise it as a trade mark and not merely as a functional element or as an indicator without intrinsic characteristics. The Court rejects an analogous application of the case-law developed for 3D marks on the grounds that the other marks consist in principle of signs which are independent of the appearance or shape of the goods.

The Court states, first, that the sound made when a can is opened will in fact be regarded as a purely technical and functional element, given the nature of the goods. The opening of a can or bottle is inherent in a technical solution in the context of the handling of drinks for the purpose of their consumption, so that that sound will not be perceived as an indication of the commercial origin of those goods. Second, the relevant public immediately associates the sound of sparkling pearls with beverages. Furthermore, the elements of sound and the absence of sound for about one second, considered as a whole, do not present an essential characteristic enabling them to be perceived by that public as an indication of the commercial origin of goods. These elements are not sufficiently distinctive to distinguish them from comparable sounds in the field of beverages.

Consequently, the General Court confirms the EUIPO's finding as to the lack of distinctiveness of the mark applied for.