When can a sound be a trademark?

With the implementation of revised trademark treaty, the requirement that a trademark must be able to be represented graphically was abandoned. This has opened the door to new sorts of trademarks. Think of movie clips, animated images, position marks and of course sound marks. Before that, a melody could only be claimed as a mark, if the melody could be represented in a music-staff. Now that this new legislation is in place, a soundmark may also be submitted as an MP3 file. However, not every application is accepted, as Ardagh learned.

 

Is the sound of opening a canned soft drink, followed by a few moments of silence and then the sound of sparkling water acceptable as a trademark? The answer is no; the consumer does not recognize a trademark in this. They simply hear the usual (functional) sound of a can opening and the fizz of carbon dioxide.

For soft drinks, this cannot be a trademark. This sound mark does not meet the requirement of distinctiveness. Note that a soundmark no longer has to deviate significantly from a natural reproduction. The key is whether the consumer recognizes a trademark in the sound. soundmarks such as the 20th Century Fox tune or the roaring MGM lion de meet this requirement.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?