Facts
Parties:
- [A.] Limited (plaintiff, appellant), a company incorporated under British law with its registered office in [U.] , which manufactures motor vehicles.
- [B. AG] (defendant, appellee), a joint-stock company with its registered office in [V.] , which manufactures and distributes chemical and chemical-technical products, in particular made from polymeric materials for the automotive industry.
Facts:
- The defendant has registered trademark No. 728 755 for various products.
- The plaintiff intends to use a similar sign for off-road vehicles in Switzerland and has filed a trademark registration application with the IGE, against which the defendant has lodged an objection.
- The plaintiff applied to the Commercial Court of the Canton of Bern to have the defendant's trademark declared invalid.
- The Commercial Court dismissed the action, as the defendant's trademark does not belong to the public domain and its registration was not made in abuse of law.
- The plaintiff filed an appeal with the Federal Supreme Court, which was dismissed by the defendant.
Considerations
The Federal Supreme Court examines ex officio and with free cognition whether a legal remedy is admissible. It concerns a civil law dispute under the application of the TmPA, for which a single cantonal instance is provided. The appeal in civil matters is admissible regardless of the amount in dispute.
The Federal Supreme Court applies the law ex officio and is not bound by the arguments invoked in the appeal or the considerations of the lower court. It examines a qualified duty to raise objections regarding the violation of fundamental rights and of cantonal and inter-cantonal law only if these have been precisely raised and substantiated.
The appellant submits that the sign in dispute is to be classified as…