When considering a trademark, the inclination is to immediately think of recognisable logos and words. But trademarks can also include colours, devices, product shapes, scents, tastes and sounds.
Many car enthusiasts will suggest that a Porsche has a distinctive sound from other cars. This undoubtedly prompted the manufacturer of Porsche, Dr. Ing. h.c. F. Porsche Aktiengesellschaft to attempt to register the sound created by a Porsche engine as a trademark in 2019 (specifically 16 seconds of Porsche’s accelerating engine noise). The European Union Intellectual Property Office (EUIPO) refused the application on the basis that it lacked the required distinctiveness to serve as a trademark.
Following the EUIPO’s refusal, Porsche appealed to the EUIPO’s Board of Appeal (BOA). Porsche argued that the sound sequence was memorable, was crafted to evoke strong emotions and was a clear indicator of Porsche’s brand identity. Porsche also submitted that the noise of its engine was not a random noise but was purposefully created, distinguishing it from a typical engine noise.
Despite Porsche’s arguments, the BOA upheld the EUIPO’s decision, finding that the sound of a Porsche engine was too closely related to general vehicle performance and acceleration, and lacked the required distinctiveness to be registered as a trademark.
iLaw Comment:
This decision showcases the difficulty of distinguishing sound marks within the automotive industry and follows the rejection of Lamborghini’s sound trademark application for an electric vehicle by the EUIPO in 2023.
In order to be registrable, it appears that a sound must create a strong impression that consumers can use to identify the brand / commercial origin, not just as a functional noise.
This is certainly an interesting space to keep an eye on going forward as brands consider a variety of means to protect and add value to their business.
