Writing for the World Trademark Report, Marco Bundi (Meisser & Partners, Klosters) explains why, allowing the registration of the word mark PEACH MALLOW, the Swiss Federal Administrative Court held that the term was not descriptive of peach-flavoured sweets.

German applicant Mederer sought to extend protection to Switzerland of its German registration for PEACH MALLOW (International Registration 855146) for "bonbons and sweets with peach flavour, partly or completely consisting of foam sugar, fruit gum, jelly (all the aforesaid goods not for medical purposes)". The application was initially refused because (i) 'peach' is a simple English word and the term 'mallow' is directly descriptive of the claimed goods, 'mallow' being the name of a plant (also called hibiscus or hollyhock); the trade mark thus lacked distinctive character and (ii) names of plants must be kept free for use by competitors.

The Federal Administrative Court disagreed. Conceding that 'peach' is easily understood by the relevant consumers (even children) as a fruit and its flavour, the court had a very different view of the term 'mallow'. In short, (i) mallow plants are used primarily for medical purposes; (ii) they are not associated with any particular flavour and (iii) there was no evidence that mallow plants were being used as ingredients for sweets. Although the root of mallow plants was traditionally used to produce marshmallows, there was no evidence that the relevant public was aware of that fact and, what's more, marshmallows were no longer produced using mallow roots. Nor was there any reason to keep the term open for general use.