Standard ringtone as a sound mark?

Sound marks are somewhat exotic, but are nonetheless capable of registration in principle. Sound marks are acoustic, audible marks, that is to say sounds, sequences of sounds, melodies or other noises and sounds. But what about a standard ringtone? Can it be registered as a Union mark? The Court of Justice of the European Union says no.

A Brazilian company filed a sound mark with the EUIPO as a Union mark in 2014. The sound mark, which consists of two sounds, was intended to be used essentially as an alarm or telephone ringtone.

The registration was rejected by the EUIPO. The EUIPO based its decision to refuse on the lack of distinctive character. The EUIPO stated that the registered mark was a banal and generally common ringtone that did not generally stand out and would not remain in the consumer's memory.

The Brazilian company subsequently brought proceedings before the General Court (EuG).

The Court's decision

The General Court (EuG) ruled in its judgment – Az. T-408/15 (Press release of 13.09.2016) – that a standard ringtone cannot be registered as a Union mark on account of its banality.

The Court thereby upheld the decision of the EUIPO and dismissed the action of the Brazilian company.

The judges in Luxembourg take the view that whilst the sounds are capable of forming marks because they can be graphically represented – as musical notes in an appropriate staff system with clefs, rests and accidentals – the registered mark is perceived by the general public merely as a bare function of the goods and services claimed and not as an indication of their commercial origin.

It is nothing more than an alarm or telephone ringtone. Such a standard ringtone is found on every electronic device with a timer and every telephone, with the result that the public, without prior knowledge, will not be able to identify this ringtone as an indication that the goods and services originate from the Brazilian company.

Conclusion

Sounds are capable of forming marks if they can be represented in the register. Furthermore, a sound mark, like other forms of marks, must have distinctive character.