Facts
[X.] KG owns an international sound mark (IR No. 858'788), a sequence of seven tones registered for "Confectionery, chocolate and chocolate products, pastry" in Class 30. The Swiss Federal Institute of Intellectual Property (IGE) refused to grant protection for the mark in Switzerland, as it lacked distinctiveness in the IGE's view. The appellant [X.] KG challenged this decision. The Federal Administrative Court dismissed the appeal and confirmed the refusal of protection. Consequently, [X.] KG filed a civil law appeal with the Federal Supreme Court.Considerations
The Federal Supreme Court overturns the judgment of the Federal Administrative Court and instructs the IGE to grant protection in Switzerland for the international registration No. 858'788 for the claimed goods. The Federal Supreme Court states that acoustic marks are generally capable of distinguishing the goods or services of one undertaking from those of other undertakings. The decisive factor is whether the sign has the required distinctiveness in the specific case. A melody without text does not necessarily have to be unusual or striking, but can also be characterized by catchiness and memorability. The disputed sound…