B. Braun Melsungen AG, the German medical and pharmaceutical device company, has successfully overturned the EU IPO's decision to refuse its sound mark, on the basis of lack of distinctive character.
The Examiner argued that the sound mark would not enable the public to distinguish the goods and services applied for in terms of their business origin as such noises are widespread, and communicate merely an inspiring or motivational sound.
The Board of Appeal dismissed the Examiner's arguments and found that the sound "has a somewhat more complex sound sequence than the normal operating signals for electronic apparatus that are merely perceived as simple signalling beams". Also, "[t]he present sound mark can ... also trigger a reminder effect". Essentially, the Board of Appeal felt that the Examiner's reasoning was not detailed enough and therefore it failed.
This case highlights that, whilst sound marks may be more difficult to register than a 'normal' trade mark, it is certainly possible.