Seven-note jingle is registrable, says court

The Swiss Federal Court has overturned a decision of the Administrative Court and ordered that the Swiss Federal Institute of Intellectual Property (IGE) register a jingle as a sound mark for goods in Class 30 of the Nice Classification (Case 4A_566/2008, April 7 2009).

August Storck KG registered in Germany a mark consisting of seven musical notes (namely, F sharp, B flat, A sharp, F sharp, G sharp, F sharp and F sharp 8va) in F sharp major. August Storck subsequently applied to extend protection of the mark to Switzerland. 

The IGE and the Federal Administrative Court held that jingles without any words lack distinctive character and cannot be registered as trademarks (for further details please see "Seven-note jingle held to lack distinctive character").

On appeal, the Federal Court highlighted that music often accompanies advertisements, particularly in radio or television spots. However, this does not mean that music is not apt to identify certain goods or services. For example, if the music is not played in the background, but at the beginning or end of an advertisement, the viewer or listener will recognize that it is meant to be a symbol of the company offering the advertised product - especially where the jingle is short and can be remembered easily. The court pointed out that jingles are commonly used in the IT industry (eg, Microsoft's 'welcome' sound for its Windows software).

Further, the court held that the seven-note jingle was capable of identifying the goods at issue (chocolate, pastry and confectionery) and their origin. According to the court, the seven notes, based on a 6/8 time, were original: while a Christmas carol might be generic for Christmas tree decorations, a jingle is not generic for pastry and confectionery. The jingle also met the representation requirements for registration as a trademark.

The Federal Court thus ordered that the mark proceed to registration.

Lucas M David, Walder Wyss & Partners Ltd, Zurich

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