Facts
The case concerns a legal dispute between Joseph Müller AG Zurich and Abbott AG regarding the validity of the "LESS" trademark. Joseph Müller AG had the word mark "LESS" registered in 1949 and renewed in 1969, particularly for use on a rheumatism ointment. Abbott AG had later registered the sign "EES" for pharmaceutical products.
In December 1980, Joseph Müller AG filed a lawsuit against Abbott AG with the aim of declaring the "EES" trademark invalid. Abbott AG filed a counterclaim and requested that the "LESS" trademark be declared null and void and ordered to be deleted from the register. The Cantonal Court of Zug dismissed the claim and, in upholding the counterclaim, found that the "LESS" trademark was null and void and had to be deleted from the register.
Joseph Müller AG appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal and confirmed the contested judgment. It stated that a claim for the nullity of a trademark can also be directed against the holder not registered in the register. The entry in the register does not have to correspond to the substantive right to the trademark, which is why the plaintiff, as the actual holder of the trademark, has standing to be sued.
The Federal Supreme Court agreed with the Cantonal…