Via IPKat: By decision dated June 15, 2023 (original Romanian version and English machine translation) the EUIPO rejected the application for registration of a European Union sound trade mark featuring the nursery rhyme “Johnny Johnny Yes Papa” on the grounds of lack of distinctiveness.
Lees hele bericht van IPKat, hier hun afsluitend commentaar:
As regards the evaluation of the length and resonance of sound trade marks, we may recall the case of the well-known James Bond theme sound trade mark. The application for registration was refused by decision of 25 September 2020 on the basis that the sign consisted of a structure composed of three music segments, which would make it difficult for the consumer to immediately perceive the sign as an indication of origin for all the goods listed in the application for registration, most of which did not have a link with the film industry and, more generally, with the entertainment industry. The EUIPO therefore concluded that the consumer would not perceive this sound trade mark as a badge of origin.
In 2021 the Board of Appeal of the EUIPO (R 1996/2020-5 see The IPKat here) came to the opposite conclusion, holding that the trade mark at issue consists of the first 25 seconds of the “James Bond Theme” and comprises three musical parts that interact distinctively with each other. The originality and easy memorability of the sound trade mark does not depend on its length, as it is instead the case for classic' marks (in terms of graphic or word extension). On the contrary, according to the Board of Appeal, it is a sound that is recognisable by the consumer who perceives it as a sign of origin, not only on an artistic-cinematographic level, but precisely with reference to all the goods claimed, which are typical merchandising products attributable to the company that owns the rights and produces the movies of the “James Bond” series.
