How long is the music theme of James Bond?

The well-known music theme of all James Bond films has been applied for as a sound mark in the European Union. After an initial refusal, the Board of Appeal of the European Trademarks Office accepted this after all. For some years now it has been possible to register multimedia trademarks (moving image, sound or a combination thereof) as European trademarks. A condition is that the image or sound is seen as a trademark. This means that the trademark must be able to distinguish the products of an enterprise from those of other enterprises, or it must be able to serve as an indication of origin.

Everyone knows James Bond. The popularity of James Bond is capitalised on by merchandising. For this reason, James Bond is also registered as a European trademark for all kinds of products. The trademark holder, the American company Danjaq LLC, filed a European trademark application of the well-known James Bond theme for a wide range of products on 19 December 2019.

The examiner refused the mark on the grounds that the sign could not function as a trade mark and would not be perceived by consumers as an indication of origin. The decision was based inter alia on the following findings:

The mark was too long. It would therefore not be considered an indication of origin.

• There is a standard for acceptance of multimedia marks known as CP11. This CP11 standard for multimedia marks could not apply to this case, as it is dated April 2021, while the application was filed before that.
• Some of the products of the application, such as cleaning products and tobacco, could not be considered as ‘film merchandise’.

Despite the fact that the sign might be familiar to film buffs, it would not be construed as an indication of origin.
Danjaq appealed. These were their main arguments:

• There was no reason to conclude that the 25 seconds fragment was too long “to be distinctive and memorable”. It was pointed out that both the EU Trademark Regulation and guidelines from the European Trademark Office do not set a maximum length for sound marks. Moreover, despite the fact that the Directives state that it is unlikely that “sounds which are too long to be considered indications of origin” could be accepted on their own, it is not specified what would be too long.
• The sound mark would be distinctive for all goods, which are all typical merchandise products.
• Danjaq further referred to the third draft of the CP11 standard, which noted that “as sounds are increasingly used in commerce as part of a brand strategy, consumers are also more likely to perceive them as indications of commercial origin.” [This was later incorporated into the final text].
• Finally, it was claimed that the sound mark consisted of a sequence of notes, which have no relation whatsoever to the merchandise products.

The Board of Appeal of the European Trademarks Office was sensitive to these arguments. It stated that no reasons had been given to support the conclusion that the sign lacked distinctiveness for the goods claimed, other than that it was “too long to be easily and immediately remembered as an indication of origin”.

The Board stated that “no stricter rules can be applied with regard to the length of sound marks, or even traditional marks, which would make them memorable and distinctive”. There is no requirement that consumers must know the sign precisely and by heart in order for it to be eligible for registration. It was also recalled that consumers generally pay more attention to the first part of a trademark, i.e. in the case of the James Bond Theme, the distinctive trumpet fanfare, which, according to the Board, is not devoid of distinctive character. The original decision was therefore overturned by the Board and the sound mark was registered.

The decision follows the aforementioned CP11 standard for multimedia brands. Based on this standard, it is recognised that companies can not only profile themselves with traditional trademarks, but can also establish multimedia as an indication of origin.