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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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WEDNESDAY, 4 MAY 2011
Switzerland: Supreme Court reinforces strict practice regarding descriptiveness
In a decision of 28 February 2011 (the reasons only became available now), the Swiss Supreme Court held, like the Swiss IPO and the Federal Administrative Court before, that the mark PROLED (fig., as depicted) was descriptive for lighting products. It reasoned that the relevant consumers would separate the mark into PRO and LED and understand it as "professional light emitting diodes", which was descriptive for the products claimed. The graphical elements of the sign (special script) were too weak to make the mark distinctive (acquired distinctiveness was not claimed). 

The decision - although wrong in my personal opinion, because no consumer when confronted with the sign above would seriously consider it a description of the products thus labelled - comes as no surprise to those familiar with the Swiss practice regarding absolute grounds for refusal. The Supreme Court has once more sided with the IPO, as it has in every single case concerning absolute grounds for refusal for word marks since 2002 (in the YUKON case of September 2002, the Supreme Court for the last time overruled the IPO on absolute grounds of refusal for word marks).

Summary of the decision of 28 February 2011 (in German).

Posted by: Mark Schweizer @ 08.47
Tags: Switzerland, absolute grounds for refusal,
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