On 27 November 2003, the European Court of Justice (ECJ) answered the preliminary questions referred to it by the Supreme Court of the Netherlands, concerning the registration of various sound signs by Shield Mark BV as trade marks. (See the related IPR-helpdesk news item for further information on the case)
According to the ECJ, the list of signs which can be registered as a trade mark contained in Article 2 of the Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is not exhaustive, and thus a sound sign may, under certain conditions, be registered as a trade mark.
Nevertheless, in order to be registered as a trade mark, a sound sign must be able to distinguish the goods or services of one undertaking from those of other undertakings. Furthermore, it must be capable of being represented graphically, in particular by means of images, lines or characters that are clear, precise, self-contained, easily accessible, intelligible, durable and objective.
According to the ECJ, these requirements are not satisfied by an indication that the sign consists of certain notes or by a simple onomatopoeia. On the other hand, the ECJ considers these requirements to be satisfied "where the sign is represented by a stave divided into measures and showing, in particular, a clef, musical notes and rests whose form indicates the relative value and, where necessary, accidentals".
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