Nintendo and Genki settle dispute over Switch 2 mock-ups - EU sound mark dispute: BVG jingle

Nintendo and Genki settle dispute over Switch 2 mock-ups

As mentioned in an earlier blogpost, Nintendo filed a lawsuit against Genki, a well-known manufacturer of tech accessories, at the U.S. District Court for the Central District of California in May. The lawsuit concerned the unauthorised display of mock-ups of the forthcoming 'Switch 2' at CES 2025, the use of the 'Nintendo Switch' and 'Joy-Con' trade marks, and the premature promotion of 'Switch 2' accessories as compatible. Nintendo accused Genki of trade mark infringement, unfair competition and misleading advertising, whereas Genki claimed that its products were independent.

The parties recently reached a settlement, after which the court issued an injunction. Firstly, Genki is banned from using Nintendo’s trade marks, logos and names such as “Glitch”, “Glitch 2”, “Genki Direct” and “Genki Indirect”. It also states that any packaging and product descriptions for accessories intended for Nintendo consoles must clearly state that Genki is an unlicensed manufacturer. Furthermore, Genki may only use the Nintendo trade marks under fair use in two scenarios: exact, verifiable compatibility claims and clear non-affiliation disclaimers. Furthermore, it prohibits the use of colour schemes associated with Nintendo, specifically red/white, red/blue, green/pink, blue/yellow, purple/orange, pink/yellow or purple/green.

It should be noted that the order applies to subsidiaries, successors and agents, as well as to all media, including the web and social networks. It covers Nintendo’s current and future intellectual property, and prohibits direct infringement, as well as the aiding or inducing of infringement, of trade marks, trade dress, and copyrights in games, operating systems, and patents.

Although the financial terms of the settlement were not disclosed, Nintendo confirmed that damages would be paid and that each party would cover its own legal costs, thereby bringing the dispute to a close.

EU sound mark dispute: BVG jingle

On 10 September 2025, the General Court of the European Union ruled on case T-288/24 concerning the EU trade mark registration of a sound sign (no. 018849003). The case concerned a four-tone melody of approximately two seconds, which had been applied for by the German company Berliner Verkehrsbetriebe (BVG) in relation to services in Class 39 of the Nice Classification. These services included transport, passenger transport, packaging and wrapping, storage, and the organisation of tourist travel.

Both the examiner and EUIPO’s Board of Appeal refused the application for lack of distinctiveness under Article 7(1)(b) EUTMR. The Board also considered the melody too short and banal, stating that it played merely a functional role similar to a simple bell before loudspeaker announcements. BVG appealed to the General Court.

The Court emphasised that the distinctiveness criteria are the same for all categories of marks, i.e. the sign must enable the relevant public to identify the commercial origin of the services.  In the case of sound marks, a certain 'resonance' is required, meaning that the sound must be perceived as a trade mark rather than as a functional element or an indicator without inherent characteristics. The Court also noted that only a minimal degree of distinctiveness is required to overcome Article 7(1)(b), and that market practices are subject to change.

In the transport sector, for instance, short jingles are very popular as a means of establishing a recognisable sonic identity. These jingles are played in airport terminals and on rail and bus platforms to introduce announcements or advertisements and capture attention in noisy environments. In light of this, the Court considered that BVG’s melody was neither dictated by technical considerations nor descriptive of the services. It is not a typical transport noise, such as a passing train or an aircraft taking off, and it has not been shown to be based on an existing tune, which supports its originality. Despite being a brief, simple four-note sequence, it can function as a jingle that the public associates with a company offering Class 39 services, such as transport, packaging, storage and trip organisation. Therefore, briefness or simplicity alone could not disqualify a sound mark.

Lastly, the Court rejected the Board’s view that the sign would play a merely functional role. Even if it is used to attract attention before announcements in stations or airports, this does not prevent the sound from simultaneously indicating commercial origin. It pointed out that comparable short melodies had already been accepted as EU sound marks in this field, including those of Deutsche Bahn (no. 18800487) and Munich Airport (no. 17396102). As a result, the Court ruled that EUIPO had misapplied Article 7(1)(b) EUTMR and annulled the Board of Appeal’s decision.