Facts
Suchard Holding SA (now Interfood SA) filed an application to register the trademark "TOP SET" with the Federal Institute of Intellectual Property for chocolate, cocoa, confectionery and pastry products. The Federal Institute rejected this application, considering that the two English words "top set" constitute a descriptive indication lacking distinctive character. Interfood SA then filed an administrative law appeal with the Federal Tribunal to have this refusal decision annulled.Considerations
The Federal Tribunal dismissed the appeal. It considered that, according to Art. 14 para. 1 no. 2 TMA, the Federal Institute must refuse to register a trademark that includes as an essential element a sign that must be considered as being in the public domain, such as a designation indicating the nature of the product or attributing certain qualities to the goods.
Although the term "set" is not yet perfectly known to the Swiss public, the expression "top set" directly evokes for the average Swiss buyer a "top-quality assortment". Even if this expression is not in one of the national languages, it remains a generic designation…