After the General Court's recent bunny shape mark decisions, another decision concerning "animal" trade marks, this time from the German Federal Patent Court concerning a word mark - and decided before the Lindt bunny cases.

In a court order of 29 November 2010, the German Federal Patent Court decided that the word mark "Schwarze Eulen" (in English: black owls) was not registrable for class 30 goods (including candy, fruit jelly (sweets), fruit gum, chewing gum (not for medical use), confectionary, liquorice, chocolate, wine gum and sweets in the form of Christmas decorations).   

The court held that the sign "Schwarze Eulen" consisted exclusively of a description of the characteristics of the goods covered by the application, in particular their shape and colour. The court further took the view that animal shapes were customary and commonly used shapes for sweets. 

Consequently, the judges decided that consumers, and in particular end-consumers, would first and foremost understand the sign "Schwarze Eulen" as a reference to the shape of the goods offered, which was akin to other common shapes used for sweets.  This interpretation seemed even more likely since the shape of owls was already in use for snacks and also used for children's toys, for example in connection with the well-known "Harry Potter" series.

In light of this, the court found that consumers when faced with the sign "Schwarze Eulen" would be able to determine the shape and colour of the (confectionary) goods covered without any further ado and without an in-depth analysis und hence interpret the sign as a direct description of the characteristic of the goods, which needed to be kept free. Thus, consumers would not regard the sign as an indication of trade origin.  As such, the sign "Schwarze Eulen" fell foul of the absolute ground of refusal under Article 8(2) No. 2 German Trade Marks Act (descriptiveness).