Facts
On June 27, 2001, the Emmentaler Switzerland Variety Organization filed an application with the Swiss Federal Institute of Intellectual Property for the registration of the word "FELSENKELLER" as a guarantee mark for cheese. The Institute fully rejected the registration application based on Art. 2 lit. a in conjunction with Art. 30 para. 2 lit. c TMG in its decision of September 29, 2003.
The Emmentaler Switzerland Variety Organization filed an appeal with the Federal Appeal Commission for Intellectual Property. The Appeal Commission upheld the appeal and referred the matter back to the Institute for further examination.
The Institute and the Federal Department of Justice and Police (FDJP) then filed an administrative court appeal with the Federal Supreme Court, requesting that the decision of the Appeal Commission be overturned and the trademark registration application be fully rejected.
Considerations
The Federal Supreme Court concluded that the Institute is not entitled to challenge the decision of the Appeal Commission by means of an administrative court appeal, as it lacks the necessary autonomy within the meaning of Art. 28 para. 1 ACIP. However, the FDJP, as the department responsible in the matter, is entitled to file an administrative court appeal pursuant to Art. 103 lit. b OJ.
On the merits, the Federal Supreme Court states that the exclusion…