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Switzerland: CAPRI is misleading geographic indication for tobacco
The Swiss Federal Administrative Court upheld a decision by the Swiss Trade Mark Office refusing protection for the depicted figurative mark for cigarettes. It reasoned that the public would believe tobacco products bearing the mark CAPRI (fig.) would originate from the Italian island of the same name, which was misleading because they did not in fact originate from the island of Capri.
The applicant argued in vain that nobody in his right mind would believe that tobacco was grown on Capri, which is a rocky island of only 10 square kilometers and primarily known for its tourism industry. The Court held that this was irrelevant because it was not impossible per se to grow tobacco on Capri. Only when it was impossible to produce the good in question at the place indicated by the geographic indication - example: the Northpole for tobacco - could it be excluded that (part of) the public was misled.
The decision once again shows that the Swiss practice on marks containing geographic indications is uniquely strict - the OAMI registered at least three "CAPRI" marks for tobacco products in class 34. On the right is a view of Capri from the sea. I wish I was there.
Tags: Switzerland, absolute grounds for refusal, geographic indication,
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01 July 2010 @ 12.43
Obviously there wouldn't be room to grow tobacco there! The old Ford car factory must take up most of the island.
01 July 2010 @ 13.09
Obviously there wouldn't be room to grow tobacco there! The old Ford car factory must take up most of the island.
01 July 2010 @ 14.51
This just shows me how ridiculous the Swiss decisions really are. Are they stupid ? You would have to be stupid to think that cigarettes called "Capri" are from a place called Capri. Is this why a lot of Swiss people fly on Virgin airline ?.
01 July 2010 @ 16.10
what makes these decisions even more problematic is that under art. 64(2) Swiss Trade Mark Act, the commercial ("gewerbsmässig") use of a misleading geographic indication is punishable by prison up to five years and/or fine. I am not aware of any decisions actually punishing anyone for using signs like AFRI-COLA (deemed misleading for products not from Africa) or CALVI (deemed misleading for goods not from Corsica), but given the clear statements of the Court, if a competitor filed a complaint with a state attorney, how would he dispose of the case without punishing the user of the mark? He would have to directly contradict the conclusion of the Federal Administrative Court that the use of the sign CAPRI for cigarettes not from Capri is misleading, which is possible, but puts the prosecutor in a really uncomfortable position.
