Can a jingle be a trademark?
A melody lasts two seconds and contains four tones. Is that enough to register it as a trademark? The EU’s General Court recently took another look at the distinctiveness of sound trademarks.
BVG v EUIPO (Case T-288/24, judgment of the General Court of 10 September 2025)
The case arose from a finding by the European Union Intellectual Property Office that a melody filed for trademark registration as a “sound sign” lacked any distinctive character. The melody was used by the Berlin municipal transit authority, Berliner Verkehrsbetriebe (BVG), for services in Class 39 (transport, passenger transport, wrapping and packaging services, storage, arranging of transportation for travel tours). The mark consisted of a two-second melody composed of four perceptible sounds—you can hear it for yourself on the EUIPO website.
The EUIPO found that the sound sign was so “short and banal” that it had no resonance or ability to be recognised by consumers as an indication of the commercial origin of the services. Its role was merely to emit a brief sequence of sounds—a jingle—to draw passengers’ attention before issuing announcements in the noisy environment on the Berlin transit system. In the examiner’s view, customers would perceive only the functional aspect of the jingle, but in and of itself the jingle lacked any message that could be associated with a specific undertaking. The EUIPO also found that the melody lacked distinctive character with respect to the other services covered by the filing. When hearing the jingle, passengers could at most regard it as a functional signal or treat it as an ordinary element of an ad. But the EUIPO did not explain why in this case as well the melody would be perceived only functionally. Upon review by the EUIPO Board of Appeal, the decision was upheld. The case reached the General Court (part of the Court of Justice of the European Union) when BVG sought to annul the EUIPO decision.
The court pointed out that the criteria for assessing the distinctiveness of a sound sign are no different from other categories of trademarks. Thus, with respect to a sound sign, it must be examined whether consumers would recognise from the sign the commercial origin of the goods and services indicated in the application. It is relevant in such an assessment to consider the role that the sound sign plays, i.e. whether it is limited merely to functional or technical aspects. It must also be considered whether the customs in the transport sector can shape the perception of the mark, making it distinctive. Based on these principles, the General Court rejected the assessment by the EUIPO.
In analysing the case, it is apparent that the General Court placed greater weight on the context of the transport sector. The court admitted that jingles used by carriers often serve a practical function, such as signalling a message for passengers, but they can also play other roles. The court pointed out that in the transport sector, jingles serve a purpose analogous to visual marks, enabling consumers to identify the undertaking and its services. Unlike the EUIPO, the General Court found that the characteristics of a jingle, such as brevity and simplicity, grab consumers’ attention and make it easier to remember the jingle. The sound sign in question did not allude to sounds functionally associated with transport, such as vehicle noise or technical signals. It is a creative and original melody, enabling it to stand out from the noisy environment and be associated with a specific transport provider. The court observed that previously registered sound marks displayed similar characteristics, such as the jingle of the German rail carrier Deutsche Bahn AG (on the EUIPO site) or the operator of the Munich Airport, Flughafen München GmbH (also on the EUIPO site). In the opinion of the General Court, the Berlin transit melody, although brief, attracts attention, is easy to remember, and can be associated with services from BVG. Thus neither the brevity nor the simplicity or alleged “banality” of the mark justified the finding that it was not distinctive. However, the mark must have sufficient distinctiveness that consumers can identify the origin of the goods or services.
The court also pointed out that the characteristics of the BVG melody—originality, catchiness, and its capacity for building a recognisable audio identity of the undertaking—also apply to services that may be related to the carrier’s activity but do not directly involve transport. Despite its simplicity and brevity, the melody is distinctive enough for consumers to associate it with BVG, whether it is used in the context of carrying passengers or related services.
This judgment adds to the existing interpretations of the grounds for registering sound trademarks, clarifying the method for applying the general criteria for distinctiveness to unconventional marks of this type. The General Court’s reasoning stresses the need to take into account the market context and the customs of the particular industry when assessing the identification function of a trademark. In sectors where the use of sounds to identify undertakings is a common practice—such as transport, telecommunications or entertainment—consumers may be accustomed to recognising sounds as an indicator of commercial origin. Distinctiveness cannot automatically be rejected because the sound can also serve a practical purpose. The same with brevity or simplicity. Nonetheless, it must be characteristic enough to evoke specific associations in the consumer’s consciousness.
Paulina Witka, Intellectual Property practice, Wardyński & Partners
