Packaging giant Ardagh has been told it can’t trademark the sound made by opening one of its drinks cans.

In the first judgment of its kind, the EU’s top court said yesterday that an application for a “sound mark” – an audio trademark – made by Ardagh Metal Beverage Holdings was not distinctive enough.

The German-registered firm is part of the Ardagh Group, which manufactures glass and metal containers and recently listed in the US at a value of around $8.5bn (€7bn).

Ardagh Group chairman and chief executive Paul Coulson told the Irish Independent recently that the firm was shifting its focus to aluminium cans, which are in high demand because they are easier and cheaper to recycle than glass, and attract investors with environmental, social and governance (ESG) goals.

In February, its US arm, Ardagh Metal Packaging (AMP) launched a $2.65bn ‘green’ bond offering. AMP is a leading global supplier of sustainable beverage cans, with customers including Diageo, Heineken, Pernod Ricard, Nestle and Coca-Cola.

The firm had attempted to register an audio file of a drinks can being opened as a trademark with the EU’s Intellectual Property Office (EUIPO).

The audio included the sound of the can opening, followed by a one-second silence and a fizzing sound lasting around nine seconds, but the EUIPO said in 2019 that the sound was “not distinctive”.

The General Court, the EU’s second-highest court, upheld the finding.

“A sound mark must have a certain resonance which enables the target consumer to perceive it as a trade mark and not as a functional element or as an indicator without any inherent characteristics,” the Court said.

The court said the sound was a “purely technical and functional element” of the product and was not enough to alert the general public to the origin of the goods.

“Those elements are not resonant enough to distinguish themselves from comparable sounds in the field of drinks.”

Other sounds have been registered as EU trademarks, including Intel’s ‘Intel Inside’ jingle, the computerised voice of physicist Stephen Hawking and a jingle for German supermarket chain Lidl.