In two recent decisions, the Federal Administrative Court allowed the registration of marks that had been considered deceptive by the Swiss IPO because they contained geographic indications, and the claimed goods did not originate from the designated place.

In the first case, Hennes & Mauritz sought to register COS (fig, see above) for clothing and accessories. The IPO held that the sign was understood as a reference to the Greek island Cos, and therefore misleading. The Administrative Court agreed with the IPO that Cos would be understood as a reference to the Greek island of the same name, which was a well-known holiday destination. However, the mark COS, in capitalized letters, would not primarily be understood as a reference to the geographic place: consumers were well accustomed to trade marks using three letter acronyms in capitals (the court mentions IBM, UPS, SAP, BMW, DHL, KFC and UBS, and specifically for the fashion industry GAP, H&M, HIS, A&F, OXMO, DKNY, CAT, NIO and NIX) and would therefore understand the mark as an acronym formed by C-O-S. If the term was given a meaning, it would be understood as a reference to the trigonometric function cosine, which was abbreviated cos or COS. The sign COS (fig.) was therefore neither descriptive nor deceptive for the claimed (fashion) goods.

In the second case, the applicant sought to register "STRELA" for clothing and fashion accessories. The IPO refused because "Strela" is the name of a mountain (pass) in the Swiss canton Grison (part of a ski resort in Davos). The Administrative Court again corrected: Strela was not suitable for the production of the goods in question and therefore could be registered under the "YUKON" criteria of the Supreme Court. It was not well known enough to serve as an indirect indication of geographic origin (such as MATTERHORN).

Both decisions seem sensible enough. They show, once again, that this is an area where the Administrative Court is willing to correct the overly strict practice of the IPO.

The decisions are not final, they can be appealed to the Supreme Court by the IPO. However, as the outcome turns on facts - the primary understanding of the marks by the relevant public -  and the Supreme Court is bound by the fact finding of the lower court, an appeal is probably pointless.

Decision COS of 2 March 2015 (summary, in German)

Decision STRELA of 18 February 2015 (PDF, in German)