*Originally posted on August 19, 2021

The sound of popping beer cans on a hot summer day may evoke memories: quenching a thirst on a hot day, backyard barbecues, days at the beach, or sunny afternoons at the ballgame. Beer can sounds are not going away. The beer can market is going gangbusters. According to one industry source, in 2020, approximately 90.2 million units of beer cans were shipped globally and it is estimated to reach 110.9 million units by 2026. “Packaging has been the most critical factor, which has played an essential role in the widespread consumption of beer around the world.” The growth of the craft beer industry and the popularity of selling and consuming beer in cans has contributed to the growth. Another industry source noted:

Beer in cans is nothing new, but for craft brewers it’s something of an innovation. And the popularity is skyrocketing. Consumers love cans because they’re lightweight, portable, and sustainable. The lighter weight (compared to bottles) also means significant savings on shipping costs for producers. And cans offer protection from light while also providing a better seal than bottle caps, keeping oxygen away from the contents.

With the growth of the beer can production and use, maybe it’s not surprising that a company and its trademark lawyers might try to register the sound of a beer can opening. Sounds are registrable so long as they act as trademarks, that is, if they are distinctive and indicate the source of goods or services. Classic sound marks include the lion roar that identifies motion pictures made by Metro-Goldwyn-Mayer and the series of musical chimes used to identify National Broadcast Company. See the USPTO web site for a list of sound trademarks.

If a company wants to register the sound a beer can opening, the trademark applicant must claim that the sound created by its canned beer is so distinctive that consumers will recognize the source of the sound as its product. Have they been successful? Thankfully, no. Most recently, the European court rejected Ardagh Metal Beverage Holdings’ trademark application to register the opening sound made by its drinks.  The court wrote:

To be registered as a patented sign, a sound must like any other registered sign have something distinctive about it, to distinguish it from all others. It is not distinctive to attempt to register ‘fizzy drinks can’ any more than it would be to copyright ‘music using notes on a 12-step scale’.

The opening of a can or bottle is inherent to a technical solution connected to the handling of drinks in order to consume them and such a sound will therefore not be perceived as an indication of the commercial origin of those goods.”

Less you think that this is a European thing, some years ago, Budweiser attempted to register the sound of a can opening with the same lack of success. In the first office action, the Trademark Examiner refused registration on grounds that the

sound that is emanated in the normal course or operation of the goods… fails to function as a trademark…  Applicant’s proposed mark is the sound of the container of pressurized liquid being opened. Because opening a can or bottle of beer is normal in the course of operating the goods before they are consumed, the mark fails to function as a trademark.

In response, Budweiser asserted that the sound is not the result of its beer “but is instead the result of opening the packaging” of the beer and, the resulting clicking sound, therefore, does not “fall into the category of goods that make sound in their normal course of operation.” In other words, Budweiser claims that the sound is the result of opening the packaging and not the result of the release of pressurized liquid. Needless to say, the Examiner was not persuaded and Budweiser abandoned the trademark application. There is no record of an appeal, so Budweiser must not have been persuaded either.

Best of all, the sounds of a hot summer’s day remain free for everyone to enjoy, reuse and reuse again. No license required :).

— Adam G. Garson, Esq.