Facts
Company X. KG (the appellant) filed international trademark IR No. 858'788, a sequence of seven sounds, for Switzerland in class 30 for confectionery, chocolate and pastry products. The Swiss Federal Institute of Intellectual Property (IPI) refused the protection of this sound mark in Switzerland on the grounds that it lacked concrete distinctive character. The appellant contested this decision before the Federal Administrative Court, which dismissed its appeal. The appellant then brought the case before the Federal Supreme Court.Considerations
The Federal Supreme Court upheld the appeal. It ruled that sound marks, even without text elements, can be capable of distinguishing a company's products from those of other companies and thus constitute a trademark within the meaning of the law. The fact that a melody is frequently used in advertising does not automatically exclude its distinctive character. To assess the concrete distinctive character of a sound mark, the Federal Supreme Court considered that the type of products concerned must be taken into account and it must be examined whether decorative or descriptive sound elements are common or reasonably expected for these products. In the present case,…