BELLAGIO not viewed as geographical indication, states Administrative Court
The Federal Administrative Court, which has now replaced the Federal Board of Appeal for Intellectual Property as the body hearing appeals from decisions of the Swiss Federal Institute of Intellectual Property (IGE) in relation to trademark matters, has overturned a decision to refuse registration of the mark BELLAGIO.
The Swiss company Syngenta Participations AG has owned the Benelux trademark registration BELLAGIO for various goods in Classes 29 and 31 of the Nice Classification since 2004. It sought to extend protection of this mark to Switzerland. However, the IGE considered the trademark to be a geographical indication which should be freely available. It stated that Bellagio is a popular tourist destination near Lake Como in Lombardy, Italy. Although it accepted that the town, which has around 3,000 inhabitants, is relatively small, it went on to say that it was known by a significant section of the Swiss population. Moreover, it held that the trademark was misleading with regard to the origin of the goods.
Syngenta appealed, mainly on the grounds that, in its opinion, the sign BELLAGIO was not known by the relevant public as a geographical indication, but rather as a fanciful name. Furthermore, it alleged that Bellagio was the name used for a famous hotel in Las Vegas and thus was not perceived as a geographical indication.
The Federal Administrative Court overturned the earlier ruling and stated that although the territory of Lombardy may be a popular tourist destination, the town of Bellagio is not well known by the Swiss public since it is a small town which does not attract mass tourism or large levels of publicity. Therefore, it held that the relevant public would view BELLAGIO as a fanciful mark, which was therefore distinctive. According to the court, the hotel of the same name enjoyed even more publicity than the Italian location.
Since the town of Bellagio is primarily famous for its handicrafts, such as woodcarving, glassblowing, glass painting and the manufacture of leather goods, there were no grounds to keep the mark BELLAGIO available in relation to goods in Classes 29 and 31 for producers based in the Bellagio region. As the mark BELLAGIO did not qualify as a geographical indication, the sign was not of misleading character.
It is highly likely that the court's decision will be appealed to the Swiss Supreme Court. Swiss practice has typically been fairly strict on signs that have a geographical character. From a Swiss perspective, Bellagio does appear to be a relatively well known region in Lombardy and it is debatable whether the hotel in Las Vegas is more famous than the Italian town, which is located far closer to Switzerland. In its analysis, the Federal Administrative Court accepted that Lombardy is a popular tourist destination and it is not too far-fetched to assume that Swiss persons who know Lombardy may also be aware of the town Bellagio, which would be enough to qualify it as a geographical indication.
Marco Bundi, Meisser & Partners, Klosters
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