BVG, Berlin’s main public transport operator, applied in March 2023 for an EU trademark on a sound logo -a brief melody about two seconds long. The jingle consists of four distinct tones and was intended to be used as part of BVG’s acoustic brand identity (for example, before passenger announcements in stations). The application covered various transport-related services in Class 39 (e.g. transport, storage, travel arrangement).
However, the EUIPO examiner refused the application on the absolute ground of lack of distinctiveness (Article 7(1)(b) EUTMR). In the examiner’s view, the jingle was too short and trivial for consumers to recognize it as indicating BVG’s services. BVG appealed, but the EUIPO Board of Appeal upheld the refusal in April 2024. The Board found the melody “so short and banal” that it had no “resonance” with consumers and would not be seen as a mark of origin for the services[3]. It would likely be perceived simply as a functional sound -akin to a brief chime before a loudspeaker announcement, used to grab attention rather than to signal brand origin.
Notably, BVG had argued that the tune was complex and unique -pointing out its polyphonic structure and even claiming the jingle’s artistic concept embodied the spirit of Berlin. The Board was unconvinced: it perceived only four simple notes and maintained that in a transit context the public wouldn’t analyze such a sound for meaning but treat it as a utilitarian signa[4]. In short, the EUIPO deemed the jingle devoid of inherent distinctiveness and thus unregistrable.
Faced with this outcome, BVG took the fight to Luxembourg -appealing to the General Court (under Article 263 TFEU) to annul the Board’s decision. The central question: Can a very short, simple melody serve as a trade mark, inherently telling consumers “this is us and not our competitors”?
