Jingle all the way to trademark protection: EU ruling opens door for short melodies

The case

Berliner Verkehrsbetriebe (BVG) applied to register a two-second, four-tone melody as an EU trademark for transport services. The EUIPO and Board of Appeal rejected the application, finding the jingle too short and too banal to function as a trademark indicating commercial origin.

The court's reasoning

The General Court overturned this decision, essentially based on the following key considerations:

• Sector-specific practices matter: The Court recognised that operators in the transport sector increasingly use "jingles" – short sound motifs – to give their services a recognisable acoustic identity that represents an audio equivalent to the visual identity of a brand. Such sound marks also enable messages to customers to be introduced or accompanied, whether in airport waiting halls or on train and bus platforms, for advertising purposes or in connection with the services provided.
• No inherent connection to the services required: The melody showed no immediate connection to the services covered and was clearly not determined by technical or functional considerations. It was not a noise typically occurring when using transport services, such as the sound of passing underground trains or aeroplanes taking off.
• Brevity aids memorability: The Court held that the melody should serve as a jingle – a short, concise and memorable sound sequence – and that despite its brevity, which is a typical characteristic of jingles and facilitates memorability, it was capable of drawing the public's attention to the commercial origin of the services. Neither the duration nor the alleged "simplicity" or "banality" constitute obstacles sufficient in themselves to deny distinctive character when the mark is intended to function as a short, concise and memorable jingle.
• No functional obstacle: Even if the sound mark were used in a station to announce associated transport services – a potentially functional purpose – such use would not prevent the mark from fulfilling its function of indicating commercial origin. In that context, this would in fact be the very purpose of the mark, as the melody enables consumers to distinguish the service and its provider from services offered by other operators in the transport sector.

Practical implications for businesses

The Court clarified that distinctive character may not be denied solely on the basis of the brevity and alleged "simplicity" of a melody. This opens up significant opportunities:

• Short jingles can be registered: Companies in the transport sector – and potentially in other industries – should be able to rely on the registrability of short jingles, provided they are designed as concise and memorable sound sequences and correspond to the customs of the respective sector.
• Consistency in EUIPO practice: The Court's reference to already registered comparable sound marks (Deutsche Bahn, Munich Airport) and to the examination guidelines demonstrates that applicants can rely on precedents to support the registrability of their marks.
• Documentation is crucial: Applicants should document sector-specific customs, the originality of the melody and comparable registered marks, and present these during the registration procedure.

Key takeaways

This decision should significantly improve the registration prospects for short melodies as sound marks and lead to a more liberal EUIPO practice. For companies looking to strengthen their brand identity through distinctive acoustic elements, this ruling provides valuable legal guidance and opens new strategic possibilities for brand protection.

author: Birgit Kapeller-Hirsch