German company Zweibrüder Optoelectronics sought to extend the protection of the above depicted positional trade mark claiming protection for flashlights to Switzerland. Protection was explicitly sought not for the shape of the torch, but for the size and positionioning of the holes in the circumference of the bulb end of the lamp (the "LED LENSER" flashlights are sold in different shapes, but all bear the holes at the front, see below for an example). Zweibrüder argued that these holes were unusual and distinctive and not functional, because they allowed the light to escape sideways, which was not actually useful for a flashlight. Acquired distinctiveness was not at issue. Both the Swiss IPO and the Federal Administrative Court on appeal refused protection of the mark.

The Court sided with the applicant in finding that the holes were not functional. Their purpose was aesthetic. However, that did not safe the day for Zweibrüder, because the holes were also, according to the Court, merely decorative and not distrinctive.

The Federal Administrative Court held that positional marks could be distinctive based on the combination of the sign and its position. However, positional marks that were an inseparable part of a product's shape were to be judged according to the same standards as form marks (with reference to the Louboutin decision, see here on Class 46). A shape of a product had to be (very, tbh) unusual and unexpected to be distinctive ab initio.

The positioning and size of the holes in the case at hand were not particularly unusual or unexpected. As Internet research by the IPO had shown, flashlights often contained decorative and/or functional elements around the rim of the bulb end. The relevant consumers - the general public - did not perceive the holes as an indication of origin.

Decision B-2894/2014 of 13 May 2016 (not final, PDF).