Request for re-registration of a company struck off the commercial register in order to bring an action for nullity of trademarks

Facts

The company Ch. AG has requested the re-registration of the company X. AG in the commercial register of the canton of St. Gallen, in order to be able to bring an action for the nullity of trademarks 312 837 and 313 206 used by X. AG. The latter had been struck off the commercial register following the closure of its bankruptcy proceedings due to lack of assets. The request for re-registration was rejected by the supervisory authority of the commercial register, a decision against which Ch. AG has appealed to the Federal Tribunal.

Considerations

The Federal Tribunal has upheld the appeal. According to its established case law, a creditor requesting the re-registration of a public limited company only needs to make the existence of its claim and the conditions for re-registration plausible, as it is for the court and not the authorities of the commercial register to make a final decision on these matters.

In the present case, the Court considers that the company Ch. AG has made its right to the cancellation of the disputed trademarks plausible. Although the holder of these trademarks, X. AG, is no longer obliged to cooperate in their cancellation, Ch. AG can nevertheless obtain a judgment declaring the nullity of the trademarks, which will allow it to have…