Court clarifies practice for registrability of two-letter marks

The Swedish Court of Patent Appeals has allowed the registration of the letter combination 'LC' as a trademark, thus updating and clarifying the Swedish practice concerning the registrability of very short letter combinations (Case 00-244).

PARI GmbH Spezialisten für effektive Inhalation applied to register the letters 'LC' as an international trademark designating Sweden for nebulizers as medical apparatus or instruments. The Swedish Patent Office refused the registration on the basis that it lacked distinctiveness. PARI appealed.

The practice for registration of short letter combinations was set by a 1998 ruling. In a case involving the letters 'RSL', the Court of Patent Appeals ruled that, in view of the registration practice of the Office for Harmonization in the Internal Market and of certain other EU member states, it seemed reasonable to conclude that (i) marks consisting of three letters or numerals should be considered to have sufficient distinctiveness per se to warrant registration, and (ii) two-letter or two-numeral marks may also be afforded registration in certain circumstances. The Supreme Administrative Court supported the ruling.

In the case at hand, the Court of Patent Appeals reviewed the current practice in the European Union. While it referred to a number of decisions of the European Court of Justice that establish the 'necessity rule' - that is, the principle that certain designations must be kept available for use by the general public (eg, the Linde Case), it also noted that the UK Patent and Trademark Office allows registration of two-letter marks as long as consumers can conceive that the letters function as a trademark. The court also reasoned that, with so many different possible combinations of letters and numerals, granting exclusive rights in a particular combination would hardly give an unfair competitive advantage to the rights holder. Accordingly, the court concluded that two-letter or two-numeral signs or combinations should be registrable per se.

Turning to the letters 'LC', the court found that they were neither descriptive of the goods to which they apply, nor a common term within the field of business in which the goods were to be used. Thus, the court held that the letters had met the distinctiveness requirement and declared the mark valid in Sweden.

Pär Leander, Magnusson Wahlin Qvist Stanbrook Advokatbyrå KB, Stockholm