Facts
The Touring Club of Switzerland, an association with over 1.2 million members, offers a mobile breakdown assistance service known as "Touring Assistance". On September 1, 1989, Mercedes-Benz (Switzerland) AG launched a "Mercedes-Benz Touring Guarantee" that provided four years of free use of the Mercedes-Benz emergency service for drivers of new Mercedes-Benz passenger cars. The Touring Club of Switzerland saw this as unfair competition against its "Touring Assistance" and as an appropriation of its name, and filed a lawsuit against it in the Commercial Court of the Canton of Zurich. The Commercial Court dismissed the lawsuit, and the Touring Club of Switzerland appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court upheld the judgment of the Commercial Court. It stated that the use of a generic term like "Touring" is generally open to any competitor, as long as it does not create a risk of confusion. In the present case, the designations "Mercedes-Benz Touring Guarantee" and "Touring Assistance" differ significantly in form and content, so that an attentive reader will not associate them with each other. Therefore, there is no unfair risk of confusion under Art. 3 lit. d UWG.
Furthermore, the Touring…