An application to trademark the tone of a ringing telephone or alarm cannot be registered because it is too boring and not distinctive enough, the lower section of the EU court has ruled.
According to a ruling handed down by the EU General Court, Brazilian company Globo Comunicação e Participações’s application for a sound sign ‘would go unnoticed and would not be remembered by the consumer’.
The decision backs an earlier ruling by the EU Intellectual Property Office that rejected the initial trademark application.
The mark, a dial tone represented by a drawing of notes on a stave, was to be used for the dissemination of information electronically.
The Brazilian company applied for the mark at the EUIPO in April 2014 but the following month its application was rejected for lacking distinctive character.
It appealed against the decision in November that year but in 2015 the EUIPO’s fifth board of appeal upheld the initial ruling – prompting an appeal to the General Court.
In its judgment the court said that although the application meets the criteria of a sound mark, in that it can be represented geographically, it would be perceived ‘only as a mere function of the goods and services covered and not as an indication of their commercial origin’.
‘A sound sign which did not have the capacity to mean more than the mere banal combination of notes of which it consists would not enable the target consumer to perceive it as functioning to identify the goods and services at issue,’ the judgment said.
It added: ‘It is the “standard” ringing sound with which all electronic devices equipped with a timer and all telephony apparatus are provided, with the result that the public will be unable, without prior knowledge, to identify that ringing sound as indicating that the goods and services come from Globo Comunicação.’
The court added that the noise will generally go unnoticed and will not be remembered by consumers.