[Guest Post] A sound decision: short jingle can be registered as a trade mark, says EU General Court

[Verónica Rodríguez Arguijo]

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[Guest Post] A sound decision: short jingle can be registered as a trade mark, says EU General Court

 Verónica Rodríguez Arguijo Friday, September 19, 2025 - distinctive character, distinctiveness, Edoardo Cesarini, Guest post, sound marks, trade marks

The IPKat is pleased to publish a guest post by Katfriend Edoardo Cesarini (GR Legal), discussing a recent decision of the EU General Court involving the trade mark registration of a short tune. Over to Edoardo:

A sound decision: short jingle can be registered as a trade mark, EU General Court says

by Edoardo Cesarini

On 10 September 2025, the EU General Court delivered its judgment in Berliner Verkehrsbetriebe (BVG), T-288/24, ECLI:EU:T:2025:847, involving a jingle from a public transport provider. This decision will likely have far-reaching consequences for assessing sound mark applications before the EUIPO.

Background

Berliner Verkehrsbetriebe (“BVG”), Berlin's main public transport company, filed EU trade mark application 018849003 on 15 March 2023 for a two-second-long sound mark (you can listen to the sound file here) in class 39 for transport, passenger transport, wrapping and packaging services, storage, and arranging transportation for travel tours.

After the examiner rejected the application, BVG filed an appeal, which the EUIPO Board of Appeal dismissed based on Article 7(1)(b) EUTMR, which establishes that trade marks devoid of any distinctive character shall not be registered.

The Board found that the mark at issue was a banal melody too short to be recognised by consumers as an indication of the commercial origin of the covered services (IPKat post here).

BVG appealed to the EU General Court..

The EU General Court judgment

The applicant put forward a single plea in law, alleging infringement of Article 7(1)(b) EUTMR as the Board of Appeal would not have correctly assessed the distinctiveness of the mark applied for.

The Board of Appeal had indeed found that the mark at issue was devoid of any distinctive character, arguing that – due to its simplicity and shortness – it (1) was not able to convey as such a message which consumers could remember and (2) would rather be perceived as a functional sound element intended to draw the listener’s attention to the subsequent announcement or to other aspects of the services covered.

At the outset, the Court recalled that the criteria for assessing the distinctiveness of sound marks are no different from those applicable to other categories of marks and that even a minimum degree of distinctive character is sufficient to make the absolute ground for refusal set out in Article 7(1)(b) EUTMR inapplicable.

Then, the Court stated that the assessment carried out by the BoA was incorrect, explaining that:

i) in the passenger transport sector, the use of a sound is quite common, and it is aimed at allowing the general public to identify the goods and services of a company and at creating a recognisable sound identity;

ii) the duration and simplicity of the jingle are intended precisely to make the sound more likely to be remembered and, consequently, effectively indicate the commercial origin of the relevant services.

With respect to the BoA’s argument that the jingle had a merely functional role, the Court pointed out that, on the contrary, the melody does not have a direct link with the services covered by the mark and does not appear to be dictated by technical or functional considerations, as it does not correspond to a noise usually heard when using transport services (such as, for example, the sound of a passing train).

The Court added that - even if the jingle has a functional role - this would not prevent the mark from indicating the commercial origin of the covered services.

Finally, the melody at hand is presumed to be an original work.

The Court consequently upheld the plea and annulled the contested BoA decision.

Comment

The Court's decision could mark a pivotal moment in sound mark protection, suggesting that even short jingles (just a sequence of a few notes) may possess the inherent distinctiveness required for trade mark registration.

For years, sound mark applications have frequently faced challenges under Article 7(1)(b) EUTMR (as seen in the Porsche Taycan and Ardagh Metal Beverage v EUIPO cases, IPKat here), often resulting in rejection for lacking a minimum degree of distinctive character.

Will the Court’s (unexpected) decision spark a new wave of sound marks applications before the EUIPO? Time will tell. 

First image by Yocchi09 from Pixabay.

Second image by Hello Cdd20 from Pixabay.