Vorsprung durch music: Will electric cars drive an increase in sound trademarks?

Porsche’s unsuccessful attempt to register an ‘engine noise’ could pave the way for EVs to make more unusual sounds—even music, comments Lee Curtis of HGF.

Although there are a reasonable number of sound trademarks registered both before the UK and EU trademark offices, registered sound trademarks are still a relatively rare species.

However, the sound trademark has not gone completely unnoticed among at least one sector of the economy, notably electric vehicle manufacturers and the rise of the electric vehicle might herald the increased use of sounds as brands in this sector and attempts to register them.

We start our discussion on a point of failure.

An EU trademark application filed by Dr. Ing. h.c. F. Porsche Aktiengesellschaft  (“Porsche”) covering goods in 9, 12, 28 & 41, which included vehicles and their parts for a sound was recently refused by the EU Intellectual Property Office (EUIPO).

Listen to the sound  here.

Porsche filed an appeal to that decision on September 6, 2023, so the story of this trademark application is not at an end.

The application was initially refused on the basis that consumers would simply not interpret the sound as a badge of trade origin. Porsche did not file evidence of distinctiveness acquired through use in support of the application, an option which is presumably still open to it, if the refusal on inherent grounds is ultimately upheld.

Porsche argued against the objection on inherent grounds, arguing that the sound was not the sound of a real engine, but a tune generated by it that was futuristic and indeed melodic.

Also, interestingly it used some file and TV sounds from the 1970s and 1980s in support of its argument, notably that the whoosh of the Star Wars light sabre and the sound of the KITT car from David Hasselhoff’s Knight Rider series, maybe well-known to any child brought up in the 1980s, showed that sounds could act as trademarks.

This did not move the EUIPO, who found that the sound was simply not complex enough and still resembled the sound of a car engine.

Has Porsche opened the door to more ambitious EV sounds?

Will Porsche succeed in its appeal before the Boards of Appeal of the EUIPO? This writer thinks that Porsche will have an extremely difficult time in persuading the Board of Appeal to overturn this objection on inherent grounds and he has some sympathy for the arguments of the EUIPO.

However, this application does raise the possibility of such sound trademarks being successful in the future. Porsche argued that the sound was essentially artificial and was not the exact replication of the actual engine noise. Indeed most electric cars are near silent.

Now this represents an opportunity for vehicle manufacturers from a branding perspective. Porsche was prepared to construct an artificial sound for a car, the problem for them is that it appears to have simply not gone far enough.

Other car manufacturers have been successful in registering sound trademarks for vehicles before the EUIPO, notably Volkswagen, BMW, and Skoda.

However, the writer would argue that these sounds were much shorter and more akin to music than engine noise.

This is an important point as if the link between one of the functions or characteristics of an electric car is broken, the characteristic here being an engine noise and a brand, then it is much more likely that vehicle manufacturers could monopolise certain sounds around their vehicles and build a brand.

If one were to go to maybe a slightly fatuous extreme, why could car manufacturers not use music for their car sounds? In theory, there are no bounds to what could be used as an electric car sound.

I presume that such car manufacturers would want to exert some limits on the sounds, or they could fall into the trap of sounding like the proverbial UK ice cream van, which attracted children and adults alike with a musical tune.

The first Volkswagen example of a sound mark is arguably a musical tune. Also, I suspect the national and local governments would be keen to avoid noise pollution, otherwise the local supermarket car park could turn into a cacophony of sound.

Novel tunes would probably be the easiest to use and protect. If the car manufacturer ‘manufactured’ the tune there would not be issues with copyright and licensing.

However, could this not be an opportunity for car manufacturers to license the use of well-known music to distinguish their vehicles? Maybe an ABBA tune for Volvo or Bruce Springsteen for one of the Detroit automakers.

These examples may well be seen as impractical, but they illustrate a point.  With the rise of the electric car, its sound can be manufactured, a point which Porsche to a degree unsuccessfully argued in their recent application.

The EUIPO probably rightly held it simply didn’t go far enough in their manufactured ‘engine tune’. As with most trademarks and their registration, it's all about degree.

Lee Curtis is a partner and Chartered Trademark Attorney at the Manchester office of HGF. He can be contacted at  lcurtis@hgf.com