Can a mere two-second jingle become a protected trademark? On 10 September 2025, the General Court of the European Union answered with a resounding “Yes.” In Berliner Verkehrsbetriebe (BVG) v. EUIPO (Case T‑288/24)[1]  the court overturned an EUIPO refusal and allowed registration of a four-note jingle used by Berlin’s public transport provider. This decision -involving a tiny tune that packs a big punch -is poised to reverberate across intellectual property law, changing how sound marks are assessed in the EU.

Background: A Jingle That Almost Didn’t Make Its Mark

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”?

The General Court’s Judgment: Striking the Right Note

The General Court’s ruling in BVG v. EUIPO came as a pleasant surprise to many trademark practitioners. The Court emphatically disagreed with EUIPO’s analysis and annulled the refusal, clearing the path for BVG’s jingle to be registered. In doing so, the Court set out important principles and specific findings that clarify how sound marks – even very short ones -should be assessed:

• Same criteria as other marks: Distinctiveness is judged by the same legal standard for all types of marks, including sound marks. A trademark (whether a word, logo, or sound) must enable the relevant public to identify the goods/services as coming from a particular source. Even a minimal degree of distinctive character is sufficient to escape the Article 7(1)(b) ban. The Court reminded that there is no stricter test for sounds –a sound need not be exceptionally elaborate or long to be distinctive.
• “Resonance” and memorability: What matters is that the sound creates a cognitive link -a certain “resonance” -such that consumers can recognize it and recall it as a badge of origin. The Court cited earlier case law that a sign, especially a non-traditional one, must not be seen as merely functional or decorative; it should stick in the mind as a mark. Crucially, the Court found that BVG’s jingle, albeit short, was designed to be catchy and memorable, just like any effective brand jingle. Its simplicity and brevity were intentional features to aid memorability, not flaws.
• Industry context -sonic branding in transport: The Court placed heavy emphasis on the context of use in the transport sector. It observed that in passenger transport, companies commonly use short audio logos or “jingles” to build a sonic identity for their services[5]. From airports to train stations, a few notes played before announcements or adverts can become uniquely associated with an operator amid the noisy environment[6]. Consumers are increasingly accustomed to identifying companies by such sounds, much like a visual logo but for the ears. Given this market reality, the Court disagreed with the Board’s view that the public isn’t used to sound marks in this field. In fact, using a short melody to signal “this announcement is from our company” is a growing custom, not an aberration.
• No direct link to services (non-functional): Another pillar of the judgment was that BVG’s melody is inherently arbitrary and not a functional sound arising from the service itself. Unlike, say, the natural noise of a train or bus engine (which would be generic to the service), this jingle is a purpose-composed tune with no intrinsic connection to transport. The Court noted it’s not like a warning bell or a standard announcement tone that anyone in the industry might use. Thus, it’s not dictated by any technical necessity or common use -it is free of any descriptive or purely functional character. The originality of the melody (not being a known song or sound) further supports its capacity to distinguish BVG.
• Brevity is not banishment: In a clear rebuke to the EUIPO’s “too short, too simple” reasoning, the Court stressed that shortness or simplicity alone is not a valid reason to deny distinctiveness. A concise jingle can still leave a lasting imprint on consumers’ minds. The judgment pointed out that jingles are by nature brief -their brevity aids in recall. Therefore, a four-note sequence, if distinctive in tune, can function as a trademark just as well as a longer sequence. “Neither the duration of the mark nor its alleged ‘simplicity’ or ‘banality’ are obstacles, in themselves, to it being recognized” by the public. This is a notable clarification that size (or length) doesn’t always matter in trademark law, so long as the mark is perceptibly distinctive.
• Dual role -signal and source identifier: The Court also tackled the argument that the jingle would be perceived merely as a functional signal (to get attention for an announcement) and not as a brand sign. Even assuming it serves an attention-getting function, it can simultaneously indicate origin. In fact, that’s precisely the point of using a consistent signature sound -to both alert listeners and imprint the company’s identity. The judges reasoned that even if the public first hears the jingle as “oh, an announcement is coming,” they can also learn to associate that particular sound with BVG’s services. Over time, hearing those notes could prompt the thought “BVG is about to say something” -which is an association of the sound with that provider, i.e. trademark use. Thus, a functional use in context does not strip a sound of its badge-of-origin capability.
• Consistency with EUIPO practice: Interestingly, the General Court bolstered its findings by noting that EUIPO’s own prior practice and guidelines didn’t rule out short jingles. BVG had cited examples of similar sounds already registered as EU trademarks -for instance, the Deutsche Bahn (German Railways) jingle and the Munich Airport jingle, each just a few notes long. The EUIPO’s Examination Guidelines even list examples of accepted sound marks comprising brief tone sequences. These showed that a “sequence of four different tones” or a short melody can be registrable. The Court found these examples comparable to BVG’s mark, undercutting the Board’s stance. In other words, EUIPO had inconsistently deemed BVG’s jingle unregistrable when similar audio logos were on the register. (As an aside, BVG had also filed the same jingle in musical notation form -and that application sailed through to registration without objection. This disparity suggested that the format of representation -audio file vs. score -may have unduly influenced the examiner’s assessment, a quirk noted by commentators)

On these bases, the General Court concluded that the Board of Appeal “made an error of assessment” in declaring the jingle devoid of distinctiveness. The court upheld BVG’s appeal and annulled the Board’s decision. In practical terms, this means the sound mark application is free to proceed to registration, recognizing BVG’s jingle as a protectable trademark.

Why This Decision Matters: A New Tune for Sound Mark Protection

·       Pivotal Precedent for Short Sound Logos

The BVG judgment marks a pivotal shift in how EU law views very short sound marks. Previously, both EUIPO and the courts have been cautious (if not skeptical) about granting trademarks to brief sounds with no prior reputation. For years, many applications for sound logos were rejected for failing to clear the distinctiveness bar. For example, in Globo Comunicação v. EUIPO (2016), the General Court held that a sound consisting of just two identical tones (resembling a simple phone ringtone) was too simplistic to be remembered by consumers as a mark, absent acquired distinctiveness. More recently, in Ardagh Metal Beverage v. EUIPO (2021), a company tried to trademark the pop and fizz sound of a drink can opening. The EUIPO -and the General Court on appeal -found that auditory sequence to be insufficiently distinctive, essentially a banal noise one would not equate with a single source. These cases reinforced a perception that only in exceptional cases could sounds (especially short, commonplace ones) function as inherently distinctive trademarks. Given that backdrop, the BVG ruling is noteworthy for its affirmative tone. It suggests that even a couple of notes, if distinctive in context, can be inherently capable of indicating origin. In the Court’s own words, the decision “could mark a pivotal moment in sound mark protection,” signaling that short jingles may possess the required distinctiveness for registration. This is an encouraging development for brand owners who invest in sonic branding. It validates the idea that a well-crafted audio logo -however short -is not just a marketing gimmick, but can attain the legal status of a trademark, deserving protection just like a visual logo or word mark.

·       Harmonizing Practice and Modern Branding Reality

The judgment also brings legal practice more in line with modern branding realities. In marketing, sonic identities are increasingly important -think of the Netflix “ta-dum” sound or the Intel bong jingle, which instantly evokes their brands. Companies across industries (tech, transport, finance, etc.) use short signature sounds to reinforce brand recognition. Until now, the EUIPO’s strict stance meant many such sounds were deemed unregistrable unless they had already become famous through use. The BVG case demonstrates a more nuanced understanding: that consumer perception is evolving, and a new or uncommon sound can still immediately denote a brand if it’s unique and purposefully used. The Court explicitly acknowledged that customs in the market are not static -they can change over time. What was novel yesterday (using a jingle as a badge of origin in public transport) can become commonplace tomorrow. By recognizing BVG’s jingle as inherently distinctive, the Court essentially endorsed the concept of “audio branding” in sectors like transport where it’s becoming routine.

It’s also significant that the Court cited the Deutsche Bahn and Munich Airport sound marks as examples. Those marks -already on the EU register -provided a sort of benchmark: if their short melodies can function as trademarks, BVG’s should too. Consistency and equal treatment in trademark examination are important for fairness. The decision may prompt the EUIPO to update its Examination Guidelines for sound marks, or at least ensure examiners consider industry context and prior registrations more carefully before rejecting a sound as “too short” or “too banal.”

·       More Applications and a Broader IP Strategy

This ruling will likely have practical ripple effects. We can expect a surge of interest in filing sound mark applications at the EUIPO. IP practitioners are already asking: Could this open the door for more creative sound logos to be protected? The answer is probably yes -but with some caution. The General Court did not say “anything that makes a noise can be a trademark.” The sound must still be perceivable as a mark (distinctive) and not purely descriptive or functional for the goods/services. Common sounds of a product or service (e.g. an engine’s roar for cars, or a phone’s ring for telecom services) will still fail as they lack distinctiveness or are generic to the kind of goods. But unique, non-obvious audio sequences stand a much better chance after BVG. As one commentator quipped, the decision might “spark a new wave of sound mark applications” at the EUIPO-much like a catchy tune inspiring a remix.

From a business perspective, companies should take note that auditory branding elements can be valuable IP assets. If you have a signature sound associated with your brand -a startup chime, an ad jingle, a series of musical notes in your app -this case suggests it may be worth trying to protect it. Successful registration means you gain the exclusive right (in the EU) to that sound for the covered goods/services, and can prevent competitors from using confusingly similar sounds. This could become a key part of brand protection strategy, complementing traditional word and logo marks. We might soon see not only tech and media companies registering sounds, but also retailers, service providers, and yes, transport companies, all jumping on the bandwagon of securing their “earcons” (ear-icons) as trademarks. It’s telling that only around 300 sound marks have been registered EU-wide to date, a tiny fraction compared to hundreds of thousands of visual marks[9]. Historically, technical hurdles (like the old requirement for graphical representation, abolished in 2017) and skepticism about distinctiveness kept that number low. With digital filing allowing audio files and now a more favorable precedent, we may finally hear more brands “making their mark” in the audio realm.

Case Law in Contrast: Where BVG Breaks New Ground

In assessing the BVG ruling’s significance, it’s useful to compare it with the earlier Ardagh decision from 2021 -essentially the last high-profile sound mark case before this. In Ardagh, the mark in question (the click-fizz of a can) was arguably longer than BVG’s jingle, yet it failed. Why? The General Court in Ardagh underscored that the sound, while novel, was too closely tied to a common product action (anyone opening a drink can hears a similar sound) and lacked any additional element to make it memorable as a source indicator. It was seen as ordinary and functional for beverages -more a sound effect than a “melody” that could merit trademark protection. By contrast, BVG’s four-tone melody has no direct link to a product action and was more akin to a short musical logo than a natural sound. This distinction is crucial. The BVG case confirms that a sound mark must have something that sticks out -be it a musical progression, a distinct rhythm, a combination of notes -that isn’t just the unavoidable noise of the product/service. In other words, original composition = more likely distinctive; mere reproduction of a commonplace sound = not distinctive.

Another comparison is with Porsche’s attempted sound mark for the electric Taycan sports car. Porsche created an artificial, futuristic accelerating engine sound and sought an EU trademark for it. The EUIPO refused it, and the Board of Appeal upheld the refusal in late 2023, finding the sound not distinctive for vehicles -essentially because it resembled an engine revving noise (even if synthesized) and consumers wouldn’t see that as a badge of origin. Interestingly, Porsche did succeed in registering the same sound in Germany nationally, but at the EU level it stalled. The BVG ruling might lead the EUIPO and courts to revisit such scenarios. If a sound, even one imitating an engine, is sufficiently unique and used as branding (and not literally the product’s functional noise), could it not also be distinctive? The General Court’s openness in BVG hints that under the right facts, even automotive sounds or other industry-specific audio cues might overcome the distinctiveness hurdle -especially if evidence shows the public associates that sound with the brand (or the sound is unlike any naturally occurring noise in that field).

Finally, the case law reminds us that acquired distinctiveness is always a fallback: A sound that isn’t inherently distinctive could still be registered if you prove it has become known as a mark through extensive use. Many famous sound trademarks (NBC’s three chimes, MGM’s lion roar, Nokia’s default ringtone, etc.) were originally protected or defensible because they had years of public exposure. What makes BVG extraordinary is that the Court accepted inherent distinctiveness in a fresh, little-known jingle. This potentially lowers the bar for protection, meaning companies might not have to spend decades educating the public before securing rights. It puts small but creative sonic logos on a more level playing field with invented words or logos, which is exactly what trademark law’s equal criteria intend.

Key Takeaways and Looking Ahead

BVG’s win is a landmark for sound marks in the EU, offering lessons for both IP lawyers and brand managers:

• Even short, simple sounds can function as trademarks, provided they are original and used in a way that consumers will perceive as identifying a source. Length alone is not a deal-breaker.
• Context matters: when assessing a sound mark, consider how that sector uses sound. If it’s customary to use audio branding (as in transport, entertainment, tech), a new sound is more likely to be seen as an identifier. The bar for distinctiveness may effectively be lower in a context where consumers expect branded sounds.
• Avoid purely generic or necessary sounds: The easiest sound marks to protect are those that don’t naturally occur in the product/service. A melodic jingle or a sequence of notes stands a better chance than the sound of the product being used. If your desired “mark” is essentially the sound anyone’s widget makes, it will be tough to claim it tells people of your specific brand (unless you’ve heavily advertised it as such).
• Consistency with existing marks: If others in your industry have registered sound logos, that’s a good sign. You can cite those as precedent (as BVG did with other transit jingles) to bolster your case. The EUIPO will need to ensure its examiners align with these court-backed examples going forward.
• Sonic branding is an asset: As the legal framework becomes more accommodating, companies should think strategically about their audio identity. Much like a visual logo or a slogan, a catchy sound can be legally owned. This could cover not just marketing jingles but in-app notification tones, start-up sounds of devices, or unique audio cues in user interfaces -anything that can, in the consumer’s ear, signify “you.”
• Enforcement considerations: One practical note -obtaining a registration is one thing, enforcing it is another. The scope of protection of a sound mark will be defined by how the mark is represented and perceived. BVG’s mark, once registered, would protect the specific melody (in whatever notations or audio file was filed). Imitations that are identical or similar in overall impression could infringe. However, detecting unauthorized use of a melody by others can be tricky (it’s not as visibly obvious as a logo on a product). Companies should remain vigilant in monitoring the use of confusingly similar tunes in their industry. Moreover, the public perception element means that if consumers don’t actually recognize your jingle as a badge of origin, enforcement could be weak. (This ties back to the Board’s point in BVG -which the Court rejected -but in practice, a mark that fails to catch on with the public is harder to defend, even if registered.)

In conclusion, the General Court’s decision in BVG is a welcome development that “rings a bell” (quite literally) for the future of sound trademarks. It aligns legal standards with creative marketing, acknowledging that branding today is as much about sound as it is about sight. IP professionals will watch closely how the EUIPO implements this judgment. Will we see an update to the manual instructing examiners not to dismiss short sounds outright? Will more applicants test the waters with novel jingles and audio logos? Probably yes on both counts -a trend that the BVG case will have set in motion.

For the general commercial audience, the takeaway is simple but powerful: your brand’s voice can be protected, not just its look. In a crowded marketplace, a distinct sound can cut through the noise -and now, thanks to this EU ruling, it can also become your legally guarded signature. The sound of your success might literally become the sound of your brand, so hum your tune and, by all means, consider making it a trademark.