Mario’s coin: sound trademarks in the EU

Trademarks

As most real gamers know, Nintendo is not only behind the well-known gaming consoles. The company also owns the rights to a number of games and characters, including that of the godfather of game characters: Mario.

Obviously Nintendo has numerous trademark registrations for Mario. It has not only registered word marks like MARIO or SUPER MARIO or MARIO KART; various images of Mario also appear in the trademark registers.

But Nintendo goes further in protecting the plumber. Recently, Nintendo in Japan applied to register the chime that you hear when Mario collects a coin. This is because Japan recently allowed sounds to be registered as trademarks.

In the EU, it has been possible to register a sound as a trademark for some time. Because European trademark law stipulated that a trademark could only be registered if it could be graphically presented, sound trademarks in the EU were submitted in the form of a staff or a phonogram.

Graphically representable

Since 23 March of this year, it is no longer necessary for a trademark to be graphically representable. However, the trademark must be clearly apparent. This offers new possibilities for sound trademarks in particular. For example, it could mean that MP3 files are submitted, as long as the register supports this file. Also in Europe, it must therefore be possible to apply for a trademark for Mario’s coin sound. The question is then whether the sound has sufficient distinctiveness. It will have to be assessed whether the relevant public associates this sound with the Mario games. Easy for the experienced gamer, but the question is whether that would be sufficient.