DELIGHT AROMAS is not descriptive, says court

The Federal Administrative Court has allowed an appeal against the refusal to register the mark DELIGHT AROMAS. According to the court, the mark in question was not descriptive since its meaning would not be understood by the relevant public.

Procter & Gamble sought to register the mark DELIGHT AROMAS for various goods in Classes 29 and 30 of the Nice Classification. The mark consisted of the words 'delight' in italics and 'aromas' written in small type underneath. The Federal Institute of Intellectual Property (IGE) refused to register the mark on the grounds that:

• the mark lacked distinctiveness; and
  
  
• the words 'delight' and 'aromas' belonged to the public domain.

The Federal Administrative Court overturned the decision. The court first stated that the combination of the two word elements 'delight' and 'aromas' was grammatically incorrect. Nevertheless, consumers would immediately perceive that 'delight' was a clue as to the quality of the 'aromas' element. Therefore, by putting the two elements together, consumers would understand that the foodstuffs at issue had a pleasant aroma.

However, the court found that the word 'delight' did not belong to the basic English vocabulary of the Swiss public. The court dismissed the IGE's argument that the Swiss public would understand the word 'delight' since its French translation, 'délice', sounded similar. According to the court, only the first two syllables were identical and DELIGHT AROMAS would thus be perceived as a coined mark. Therefore, the court allowed the registration of the mark.

The court's decision seems to limit significantly the IGE's current practice as to what can be considered as basic English vocabulary. The decision is final.

Marco Bundi, Meisser & Partners, Klosters