Sound marks and distinctive character: the EU General Court upholds BVG's appeal
In an interesting ruling on sound marks - judgment of 10 September 2025 (Case T-288/24) - the EU General Court annulled the decision of the Fifth Board of Appeal of the EUIPO, which had rejected the application for registration of EU sound mark no. 018849003 filed by the Berlin public transport company, Berliner Verkehrsbetriebe (BVG).
In March 2023, BVG filed an application for a sound mark consisting of a jingle composed of a sequence of four audible sounds with a total duration of two seconds, to distinguish services in class 39 of the Nice Classification (“Transport; Passenger transportation; Wrapping and packaging services; Storage; Arranging of transportation for travel tours”).
The EUIPO rejected the application on the grounds that the sign lacked distinctive character, on the grounds that it was too short and generic and could be associated with a functional element typical of audible warnings used in transport contexts. This assessment was subsequently confirmed by the competent Board of Appeal.
Following a further appeal by BVG, the EU General Court overturned the decision in its entirety, noting that:
pursuant to Article 7(1)(b) EUTMR, a minimum level of distinctiveness is sufficient to overcome the absolute ground for refusal. This criterion applies to all categories of trademarks, including sound marks. In fact, neither the duration of the mark applied for nor its alleged simplicity or banality, which in themselves do not prevent the corresponding melody from being recognisable, automatically determine an absence of distinctive character;
it is well known that operators in the sector use jingles to create an identity that is recognisable to the public. These melodies serve to capture attention in noisy environments (stations, airports) and to create a recognisable sound identity;
the melody in question did not reproduce any sound typical of the transport sector (e.g. the sound of train brakes or an aeroplane taking off). Precisely because it was not dictated by technical or functional requirements, it was likely to be perceived by the public as an indicator of the commercial origin of the services;
also through comparison with other sound marks registered by EUIPO, the characteristics of the trademark application in terms of duration, melody used and perceptible sounds were consistent with EUIPO’s established practice regarding the examination and registrability of sound marks.
The EU General Court therefore ruled that the Fifth Board of Appeal of EUIPO had made an error in considering the sound sequence too short and simple, given that brevity is a typical feature of jingles and helps the public to remember them. Ultimately, the Court ruled that the assessment of the trademark’s lack of distinctive character was incorrect.
The contested decision was therefore annulled, with the EUIPO ordered to pay the costs.