Trademark protection of a very simply designed sign; no application in bad faith

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The trademark holder of the new trademark had unsuccessfully sued for cancellation of the earlier trademark before the Commercial Court of the Canton of Bern after the trademark holder of the earlier trademark had filed an opposition against the registration of the new trademark. The dispute concerned, firstly, whether the registered trademark belonged to the public domain within the meaning of Art. 2 lit. a TmPA and, secondly, whether it had been applied for in bad faith within the meaning of Art. 8 Swiss Civil Code. The judgement of the Swiss Federal Supreme Court of 8 September 2022 (4A_227/2022), which is gratifying for trademark owners, is of groundbreaking importance for both issues.

No sign in the public domain

Individual letters, numbers, basic geometric elements or generally customary symbols are part of the public domain and are generally excluded from trademark protection. However, the sign claimed by the contested trademark does not belong to the public domain because, according to the Federal Supreme Court, it is neither perceived as the letter “A”, nor as an upside-down letter “V”, nor as an arrow or other common symbol. The similarity with the Greek capital letter lambda does not lead to invalidity either, because this letter has a specific meaning in classical physics which is not descriptive for the products claimed.

As a result, the Federal Supreme Court granted the disputed trademark minimal original distinctiveness with a correspondingly narrow scope of protection, and it remains to be seen how the IPI will deal with this indication in the opposition proceedings.

No bad faith registration

According to case law and doctrine, a registered trademark is invalid if it was not filed for the purpose of use but with the intention of preventing the use or registration of similar signs by third parties.

According to the Federal Supreme Court, this was not the case in the present dispute. Because the lack of intention to use was a negative and intrinsic fact that could hardly be proven positively, it was not the invalidity plaintiff but the trademark proprietor who had to prove that he intended to use the trademark in good faith, in deviation from the general rule of burden of proof. In the present case, the trademark proprietor had made it credible that it intended to use the disputed trademark.

The broad list of goods and services of the disputed trademark also did not necessarily indicate a defensive trademark. As the Federal Supreme Court had already ruled in its judgment of 23 February 2021, 4A_429/2011, E. 5.4, a trademark proprietor may keep a certain amount of leeway open by means of a broad formulation of the list of goods and services.

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