BVG v EUIPO: A Sound Mark Judgment That Resonates Beyond Melody

On 10 September 2025, the General Court of the European Union delivered a judgment in Case T‑288/24 – BVG v EUIPO that merits close attention from trade mark practitioners and also brand owners. The Court annulled the EUIPO’s refusal to register a sound, namely a short jingle of Berlin’s public transport operator, Berliner Verkehrsbetriebe (BVG), for use on their buses, confirming that brevity and simplicity are not, in themselves, grounds for refusal under Article 7(1)(b) of the EUTMR.

Listen to the jingle that BVG applied for here.

This decision offers a clarifying lens through which to view the concept of distinctive character, particularly in relation to signs often dismissed as “banal.”

Background: A Two-Second Melody and a Legal Challenge

The facts were, briefly, that BVG sought to register the two-second sound mark mentioned above (comprising four audible tones) for services in Class 39, including transport and travel arrangement. The EUIPO examiner refused the application, and the Fifth Board of Appeal upheld that refusal, describing the melody as extremely short, simple, and functional and therefore incapable of being perceived as an indication of origin.

After consideration, the General Court disagreed.

The Court’s Reasoning

1. Brevity Is Not a Barrier

   The General Court reaffirmed that sound marks are subject to the same criteria as other types of marks. It held that even a short jingle may possess sufficient resonance to be perceived as a trade mark and that simplicity and banality are not the same as non-distinctiveness. The Court said: 

   “Neither the duration of the mark applied for nor its alleged ‘simplicity’ or ‘banality’, which does not in itself prevent the corresponding melody from being recognised, are obstacles which are sufficient, in themselves, to justify the lack of any distinctive character.” ^[1]
   
   In short, banality is not synonymous with non-distinctiveness, a distinction that is too often blurred in office actions and a reason why this judgment is relevant to practitioners when responding to refusals on absolute grounds. 

2. Sector Norms, Consumer Perception and Functionality

   The Court furthermore recognised that jingles are customary in the transport sector, where they serve as sonic identifiers akin to visual logos. Consumers are accustomed to hearing such sounds and associating them with specific service providers.

   The Court found that the melody did not imitate transport sounds nor was it dictated by technical necessity. Because sounds often serve a distinguishing function and the sound applied for was not functional or dictated by technical necessity, the Court found it original and non-functional and inherently distinctive, reinforcing its capacity to indicate origin.

3. Consistency with EUIPO Practice

   The Court referenced prior registrations of short jingles in the transport sector, including:

   1. Deutsche Bahn’s jingle (EUTM No 18800487)  
      (you can view the application and listen to this Jingle here)
   2. Munich Airport’s melody (EUTM No 17396102) 
      (you can view the application and listen to this Jingle here – or perhaps on your way to the Octoberfest next time).

   
   The EUIPO Guidelines also cite accepted examples of four-tone sequences that vary in pitch and rhythm, confirming that brevity and simplicity are not disqualifying.

Implications Beyond Sound Marks

The Court’s reasoning has broader relevance. It offers a rebuttal to refusals based on alleged banality, which are common in cases involving simple shapes, position marks, single colours, short slogans and minimalistic figurative elements. These marks are not, per se, inherently non-distinctive, but nor are they per se distinctive. In each instance, the decisive question is whether the sign, however simple, is capable of being perceived by the relevant public as an indication of origin. 

Practical Guidance for Sound Marks

For those investing in sonic branding, the judgment offers several instructive points:

• Focus on resonance: A sound must leave an impression. Use in noisy environments (e.g. stations) can support distinctiveness.
• Avoid functional sounds: Descriptive or technical noises are unlikely to qualify. Originality is key.
• Reference EUIPO practice: Cite comparable registrations and examples from the Guidelines to support your application, if objection is raised by the examiner.
• Highlight industry norms: In sectors where sound branding is common, show that consumers expect and recognise jingles as brand signals, and not as functional sounds. 

Conclusion 

It goes without saying that the acceptability of a sound mark depends on whether the sound is distinctive per se and the applicable test is whether or not the average consumer perceives it as a memorable indicator of origin. As the EUIPO Guidelines (Part B, Section 4, Chapter 3, paragraph 15) explain, a sound must have a certain resonance, enabling the relevant public to recognise it as a trade mark. Distinctiveness is lacking where the sound is perceived as functional or devoid of intrinsic characteristics, for example, due to excessive simplicity or banality; however, this most recent case confirms that brevity, simplicity, and even banality per se do not automatically preclude registration. In sectors where sound branding is prevalent, even a two-second jingle may serve as a badge of origin. The test must be applied on a case-by-case basis. 

For practitioners, the decision is a timely reminder to challenge refusals that rely on banality as a proxy for non-distinctiveness. The law demands more than a superficial dismissal on the ground of banality.