In the following, the key points of trademark practice are presented analogously. The explanations are based on the Guidelines for Trademark Questions of the IGE in Bern.
For specific questions, specialized trademark attorneys should be consulted. We will be happy to clarify your concerns in cooperation with the trademark attorneys associated with us.
Function of the trademark
As a distinctive sign, the trademark initially has a distinguishing function: it is intended to individualize marked goods/services so that consumers can find a once-protected product again in the crowd of offers (e.g. BGE 122 III 382 KAMILLOSAN/ KAMILLAN). A trademark must differ in all of the following criteria from an already registered trademark. Already 1 overlap constitutes a likelihood of confusion (see opposition procedure)(see Opposition procedure)
Sound pattern (number of syllables, sonorous vowels and their cadence, consonant sequence (BGE 78 II 381 ALUCOL)
Typeface (length, number of letters in the same place and in the same order)
Meaning (associations, obvious meaning)
The scope of protection of a trademark is defined by its distinctiveness. For weak trademarks (essential elements closely related to of the general language), the protected range of similarity is smaller than for strong ones. Therefore, for weak trademarks, even more modest deviations are sufficient to create sufficient distinctiveness.
In addition, the trademark fulfills an origin function (see BGE 128 III 454 YUKON). It guarantees that all the products marked with it are controlled by a single person.
BGE : Bundesgerichtsentscheid
Kl.: Waren- und Dienstleistungsklasse
MschG : Markenschutzgesetz
IR: Internationale Registrierung