Facts
The Montessori Association (Switzerland) (plaintiff) is an association founded in 1982, which aims to promote the educational method founded by the Italian physician Maria Montessori and to disseminate her ideas. The plaintiff is the owner of the CH trademark No. 447525 "Montessori", registered on April 16, 1997, for services in class 41. The defendant, a trained medical assistant, has been operating a kindergarten in X since 1996, which she calls "Montessori Kindergarten". The plaintiff demanded that the defendant cease using the name "Montessori" to designate her kindergarten, as she does not recognize the defendant's training as a sufficient basis for authorizing her to independently manage a "Montessori" institution.
The High Court of the Canton of Lucerne prohibited the defendant, under threat of penalty, from marking her kindergarten services in commercial transactions using the name "Montessori". The defendant filed a federal appeal, requesting that the defendant be allowed to mark her kindergarten services in commercial transactions using the name "Montessori".
Considerations
The Federal Court dismissed the appeal, insofar as it was considered. The defendant claims that the "Montessori" trademark has degenerated into a free sign over time. However, the Federal Court found that the transformation of a trademark into a free sign is only completed when all parties involved in the production, distribution, and acquisition of the goods or services, or the use of the services, no longer consider the sign as an indication of a specific business or specific goods or services, but as a common good.
The Federal Court also found that the defendant did not comprehensively provide evidence of trademark degeneration and therefore was unable to provide it. The findings on the prevailing opinions in the relevant circles are of a factual nature and are binding on the Federal Court. The defendant did not demonstrate that she had offered comprehensive evidence that the "Montessori" trademark had…