In a court order of 8 February 2011 (just in time for Valentine’s Day), the German Federal Patent Court held that the word mark Herzchen (in English: little heart) was not distinctive enough to qualify for registration for ice cream and flan in class 30 but that the mark could be registered for ice cream powder.

The court found that the average (German) consumer would interpret the sign "Herzchen" immediately as a reference to the shape of the goods applied for (ice cream and flan) as well as their packaging so that the sign “Herzchen” could not function as an indication of trade origin or a specific manufacturer. 

Concerning the applicant's argument that it had not been proven that flan and ice cream were offered in a heart shape, the court referred to (factual) evidence which had been communicated to the applicant at the oral hearing in these proceedings. According to this evidence the heart shape was commonly used for confectionary goods, as well as for flan and ice cream.  The court stressed that this was in particular true for the numerous recipe suggestions for Mother’s Day or Valentine’s Day and as such for those days that were associated with love and affection which were symbolised by the heart shape.

The fact that the term “Herzchen”, when looked at in ‘abstract’, was an ambiguous term in the German language - since it could refer to a “little heart” but also to a naïve person - did not change this assessment.  Here the court again stressed that the registrability of a mark always had to be seen in connection with the goods and services applied for.  Finally, consumers would interpret the term Herzchen differently when seen in connection to ice cream powder for which the mark was registrable.

Case reference:  Bundespatentgericht, Az.: 25 W (pat) 91/09 of 8 February 2011.  The decision can be retrieved from the court’s website by clicking here.