On appeal by the applicant, the German Federal Patent Court recently (case reference 30 W (pat) 25/09 of 30 May 2009) had to decide whether the mark "SCHLÜSEL" was registrable as a trade mark for goods and services such as safe, padlocks, security services, services of a locksmith and security services. The German Patent and Trademark Office (DPMA) had refused the application as non-distinctive.

By way of background information: the German word "Schlüssel" (with two s in the middle) translates into the English word "key". It might not comes as much of a surprise that the court decided that the average consumer would make the connection and interpret the mark "SCHLÜSEL" as relating to "Schlüssel", even though the term "SCHLÜSEL" (with one s) was not listed in any German dictionary (the latter was argued by the applicant). The judges decided that the mark was not distinctive enough for registration, inter alia referring to the ECJ's precedents in the BioID, Postkantoor and Doublemint. The average consumer would not interpret "Schlüsel" as an invented or unusual fantasy word that had no predetermined meaning but would understand it as a misspelling of the word "Schlüssel". The court also disagreed with the applicant's contention that the mark "SCHLÜSEL" could be interpreted as referring to the German word "Schlusel" (without the Umlaut), which translate into the English words "to lose, to forget". Here, the court decided that such an interpretation was too far fetched. Further the judges held that the mark "Schlüsel" directly referred to the goods and services covered by the application, which it described.

To read the court's elegant reasoning in detail, please click here to retrieve the decision in its entirety (in German).

Reader Comments: 0

Post a Comment