Sound signs are not by nature incapable of distinguishing the goods or services of one undertaking from those of another undertaking. In those circumstances, Article 4 of Regulation No 207/2009 on the EU trade mark must be interpreted as meaning that sounds may constitute a trade mark, provided that they may also be represented graphically. It is not disputed that the notation of musical notes on a stave, accompanied by a clef, rests and accidentals, constitutes a ‘graphical representation’ for the purposes of Article 4 of Regulation No 207/2009. Even if such a representation is not immediately intelligible, the fact remains that it may be easily intelligible, thus allowing the competent authorities and the public, in particular traders, to know precisely the sign in respect of which registration as a trade mark is sought.

Although the public is used to perceiving word or figurative marks as signs which identify the commercial origin of goods and services, the same is not necessarily true when the sign consists solely of a sound element.

However, as regards certain goods or services, it may not be unusual for the consumer to identify them by means of a sound element. Accordingly, in certain economic sectors such as that of television broadcasting, it is not only not unusual, but also even common for the consumer to identify a product or service in that sector as a result of a sound element which makes it possible to distinguish that product or service as coming from a particular undertaking.

Similarly, as regards certain goods and services linked, in particular, first, to tools for communicating or entertaining by means of television broadcasting or radio broadcasting and to telephony and, secondly, to IT media, computer software or to the media sector in general, sound elements, such as jingles or melodies, are used in order to enable the product or service at issue to be identified aurally as coming from a particular undertaking.

It is necessary for the sound sign in respect of which registration is sought to have a certain resonance which enables the target consumer to perceive and regard it as a trade mark and not as a functional element or as an indicator without any inherent characteristics. That consumer must thus regard the sound sign as having the ability to identify, in the sense that it will be identifiable as a trade mark.

Consequently, a sound sign which did not have the capacity to mean more than the mere banal combination of notes of which it consists would not enable the target consumer to perceive it as functioning to identify the goods and services at issue, since it would be reduced to a straightforward ‘mirror effect’, in the sense that it would refer only to itself and to nothing else. It would not therefore be capable of engendering in the target consumer a certain form of attention which would enable him to perceive that sign’s necessary identifying function.

Moreover, the allegedly unusual use of a telephone ringtone as an indicator of the origin of goods and services is not sufficient for it to be held that the sign is capable of identifying such an origin where its excessive simplicity makes that sign incapable of identifying the origin of the goods or services, since that sign is monotonal and can refer only to itself.

In that regard, a trade mark consisting of sounds resembling a ringing sound cannot perform an identifying function unless it includes elements capable of distinguishing it from other sound marks; it should, however, be pointed out that it is not necessary for that mark to be original or fanciful.

(see paras 42-46, 55, 57)