Brand PracticeIn 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.
Types of trademarks |
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Content of the trademark Common property: Excluded from protection are signs which are in the public domain (Art. 2 MSchG), i.e. they are not distinctive or serve in trade to designate the quality, place of origin, etc. of the products or are customary in the trade practices of a country. For the assessment of the public domain character, relevant dictionaries and encyclopedias, possibly also Internet searches, serve to prove the banality or customary nature of a sign. I.e. the name APPLE can be protected for everything except fruits. Non-proprietary signs: Originally distinctive signs that have become generic over time as a result of their common use. These signs are then in the public domain and can no longer be protected as trademarks. The scope of protection of a previously protected trademark is in danger of lapsing as a result (e.g. TESA, TEMPO, JEEP, WALKMAN). This is why certain companies permanently refer to the fact that they are registered trademarks (e.g. DAX of Deutsche Börse AG). Combination of descriptive elements: Signs are not eligible for protection if they are immediately comprehensible in terms of meaning and not sufficiently modified or incorrect in terms of language. Mere combination of two terms is not sufficient (e.g. RKGE 2000, 592, CLEARCUT). Combination of signs of the public domain: Trademarks composed of different signs of the of different signs of the public domain can be protected if the combination gives a distinctive overall impression (e.g. IR L (e.g. IR LIPOLEVRES, cl.3, 5) ergibt (z.B. IR LIPOLEVRES, Kl.3, 5) Combination of descriptive indications with single letters/digits: Are eligible for protection provided that the simple sign does not have a specific meaning in relation to the class of goods/services (e.g. M Power). If there is a specific meaning, the rules for combining descriptive elements apply (e.g. WORLDWIDE 9 is protectable for telecommunications). |
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Domain names and phone numbers: Domain names and telephone numbers: Domain names are trivial indications without distinctive character. Auto.COM is not protectable for car rental. ABC.CH is protectable under certain circumstances. Telephone numbers, on the other hand, are protectable, except 0800 numbers (e.g. 0800PIZZA is not protectable for catering). Pleonasms, Repetitions: An accumulation of expressions related in meaning or superfluous repetition of a descriptive word sense (pleanasmus) can cause protectability (e.g. TINIMINI; tiny= small, mini= very small). If repetitions are descriptive, they are generally not protectable (e.g. CURRY-CURRY). Symbolic designations: Do not describe the subject of the mark directly, but with the aid of a symbol. They are protectable if not in common use in the trade (e.g. LILIPUT, cl. 25). Multiple languages: Descriptive or common signs with elements from 3 or more different languages are eligible for protection. Mere 2-languages are normally not sufficient (e.g.: GREENAPFEL). Example eligible for protection: NASOCLEAN. Non-protectable example: AQUASWISS Letter or number combinations: Not eligible for protection are abbreviations that have acquired actual meaning and are therefore descriptive of the goods concerned (e.g. indications of dimensions or types). Examples of non-protectable signs: 4WD for vehicles, M8 for screws etc.. However, 4 WD is in principle protectable for all other applications. Punctuations: In combination among themselves or with other simple signs, these may be protectable: (e.g. Q. IR 734 278, cl. 12, 25, 28). Foreign scripts and alphabets: Individual letters as well as written-out letters of foreign scripts (e.g. Greek alphabet) are eligible for protection, provided they are not descriptive (e.g. ALPHA CH 440 486, cl. 37). Fonts that are unusual here (e.g. Kirillic or Japanese) are treated as figurative signs and are in principle distinctive and do not need to be kept free). |
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Legende: BGE : Bundesgerichtsentscheid Kl.: Waren- und Dienstleistungsklasse BVGer: Bundesverwaltungsgericht MschG : Markenschutzgesetz IR: Internationale Registrierung |
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