Is the sound of opening a canned soft drink, followed by a few moments of silence and then the sound of sparkling water acceptable as a trademark? The answer is no; the consumer does not recognize a trademark in this. They simply hear the usual (functional) sound of a can opening and the fizz of carbon dioxide.
For soft drinks, this cannot be a trademark. This sound mark does not meet the requirement of distinctiveness. Note that a soundmark no longer has to deviate significantly from a natural reproduction. The key is whether the consumer recognizes a trademark in the sound. soundmarks such as the 20th Century Fox tune or the roaring MGM lion de meet this requirement.
