On 15 March 2023, Berliner Verkehrsbetriebe (BVG) filed a trademark application in respect of a sound sign consisting of a short melody, to cover services in class 39 regarding transports. However, the application was rejected on the grounds that the melody lacked distinctiveness because it was too short and banal, as it did not have resonance or ability to be recognised by consumers as an indication of the commercial origin of the services which it covered.

https://euipo.europa.eu/trademark/sound/EM500000018849003

Berliner Verkehrsbetriebe (BVG) appealed the decision before the General Court seeking the annulment of the contested decision. The appellant argued that the characteristics of the mark applied were in line with the examination guidelines provided by the EUIPO in relation to sound marks.

The contested mark was a two-second sound sign consisting of a simple sequence of  four different sounds. In this regard, the Board of Appeal indicated that although it was different from other jingles used in the transport sector, that difference was not sufficient to confer distinctive character. As it was extremely short and simple. Therefore, it was considered that it did not convey a message that consumers could remember and identify with a specific business origin. For this reason, the EUIPO refused to register the mark, as it was a functional sound element, the purpose of which was to draw the listener’s attention to the subsequent announcement or to other aspects of the services covered.

After examining the issue, the General Court considered that, given the customs in the transport sector, it is common to use jingles to create a sound identity recognisable by the public. The melody that constitutes the mark applied for, has no direct link with the services for which registration is sought; in other words, the sound is not a noise which is usually heard when using those services (e.g. the sound of a train passing or an aeroplane taking off). Nor has it been shown that the mark applied for is already known to the public, so the originality of the work is presumed. The sound applied for is intended to be a short, striking sound sequence likely to be remembered and capable of drawing the public’s attention to the commercial origin of the services covered by that mark.

In view of the foregoing, the General Court upholds the appeal and annuls the contested decision. The mark applied for by Berliner Verkehrsbetriebe (BVG) constitutes a recognisable sound identity. Although it has a functional role in a station for announcing the associated transport service, that use does not prevent the mark from performing its function of indicating the commercial origin of the service. The purpose of the jingle is to allow the target public to distinguish that service and the undertaking concerned from other services which may be offered by other operators in the transport sector.

General Court Decision – 10 September 2025 in Case T-288/24