Facts
Swatch Group SA (the appellant) filed a three-dimensional trademark for watch straps with the Swiss Federal Institute of Intellectual Property (IGE) on September 29, 2000. However, the IGE rejected the trademark registration application on the grounds that the form lacked distinctiveness and was considered to be in the public domain. The appellant then submitted various documents to credibly demonstrate the acquired distinctiveness of the trademark through use.
The Federal Appeals Commission for Intellectual Property (ERKGE) upheld the IGE's rejection. It saw no reason to doubt the IGE's consideration that the Institute would require the conduct of a market survey to demonstrate the acquired distinctiveness, depending on the degree of banality of the sign in question.
The appellant then filed an administrative court appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that a form belonging to the public domain is only eligible for trademark protection under Art. 2(a) of the Trademark Act if it has acquired distinctiveness through use in the market. For the purpose of proving acquired distinctiveness in the registration procedure, it is sufficient that this is credibly demonstrated.
The Federal Supreme Court considered it not to be a violation of federal law that the IGE imposes higher requirements for credibly demonstrating acquired distinctiveness, the more banal a sign appears. This appropriately takes into…