Facts
On April 1, 1993, X AG applied to the Federal Institute of Intellectual Property (BAGE) for the registration of a three-dimensional trademark intended for watches. The claimed shape mark was represented in the application by two illustrations of a wristwatch. On December 10, 1993, BAGE refused the registration of the mark on the grounds that it lacked the required distinctive character and that it was a shape that constituted the essence of the goods, and therefore was excluded from trademark protection. X AG appealed this decision to the Federal Administrative Court, which was dismissed by the Federal Supreme Court.
Considerations
The Federal Supreme Court stated that according to the legal definition of the Trademark Act, a trademark must be a sign that is capable of distinguishing the goods or services of one undertaking from those of other undertakings. According to the law, trademarks may also consist of three-dimensional forms. However, the ability to be protected is subject to exceptions, particularly when the form is in the public domain or constitutes the essence of the goods.
In the present case, the Federal Supreme Court concluded that all the essential design elements of a wristwatch, such as the case, the dial, the hands, and the strap, are widely available on the market. Even…