The public does not necessarily recognise sound marks as trade marks. However, sound marks are not uncommon for certain goods or services, so that the consumer recognises them by means of a sound element.
Sound marks are common, for example, in the field of television broadcasting, telephone technology or media such as data carriers or software.^[1] In contrast, a sound mark reminiscent of the sound made when opening a can of drink is devoid of any distinctive character for food and related products.^[2]
Even in these sectors, however, a minimum degree of distinctiveness is required for a sign to be perceived as a trade mark. A sound sign that is no more than the simple, everyday composition of notes from which it is formed lacks this distinctive character.^[3]
Therefore, the mere reproduction of a ringtone consisting of only two identical tones is not eligible for protection.^[4]