Too short and banal
In April 2024, the Board of Appeal rejected the trademark application, arguing that the jingle lacked distinctiveness. According to the Board, the two-second sound was so short and banal that it was in no way catchy and could not be perceived by consumers as a trademark. BVG appealed the decision to the General Court—and won.
A jingle is supposed to be short
The Court’s judgment of 10 September shows that there is room for trademark protection of short sounds. According to the Court, the very nature of a jingle is to be short and attention-grabbing, which helps make it easy to remember. The same applies to this jingle, which the Court found could indeed function as a distinctive sign—a trademark.
Resonance
According to established case law, a sound must have a certain “resonance” to function as a trademark. A sound that is too short (for example, two identical tones in succession) generally lacks sufficient distinctiveness. Where exactly that threshold lies remains difficult to predict—but BVG’s short jingle apparently has enough resonance which enables the target consumer to perceive it as a trademark.
Transport companies
Another factor in the Court’s reasoning was that BVG operates in the transport sector. The Court noted that it is widely known that transport companies often use jingles or sound cues to attract passengers’ attention in noisy environments. The public is therefore accustomed to hearing such sounds in stations or terminals and will easily recognize them as trademarks. Would the outcome have been different if—say—an architecture firm had applied for the same jingle? Possibly, since architecture clients are not typically exposed to jingles.
Previous registrations
This decision also aligns with earlier accepted sound marks. For example, listen to these short jingles, both of which have been granted EU trademark protection: the first from Munich Airport (Flughafen München), and the second from Deutsche Bahn.
Bas Kist
Banner Photo by Mika Baumeister on Unsplash
Photo Bus by Fionn Große on Unsplash
