Sound mark - children's song

When people think of brands, they often only think of word marks and logos. However, there are many types of trademarks, such as multimedia marks, position marks and, of course, sound marks (think, for example, of the lion's cry from film company Metro-Goldwyn-Mayer). However, not every sound can be claimed as a trademark. 

 

If the sound is very short (two identical tones), consumers will not be able to recognize a trademark in this (but rather judge this as a ringtone). Very long sound marks can also encounter problems or their own.

The EUIPO recently rejected a 39-second sound mark based on the well-known children's song Johnny Johnny Yes Papa. The reasons given by the authority include the long duration of the sound mark, the fact that there is not an easily recognizable melody line, the sound mark is based on a well-known children's song, and no other distinguishing marks appear.

Keeping in mind the earlier judgement of the James Bond tune, actually the most important prerequisite is the easily recognizable melody line. A long tune does make this more difficult. (source image: EUIPO decision - BoA).

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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?