DELISWISS mark not misleading as to origin, rules court


In Chocosuisse Union des Fabricants Suisses de Chocolat v Gourmesa SA (Case 1455/98), the Second Chamber of the Federal Civil and Commercial Court of Appeals has upheld the registration of the mark DELISWISS, finding that the mark will not mislead consumers as to the origin of the products to which it applies.

Gourmesa SA applied to register the mark DELISWISS for all products included in Class 30 of the Nice Classification. Chocosuisse Union des Fabricants Suisses de Chocolat, an organization representing Swiss chocolate producers, opposed the application on the grounds that the mark suggests that the products to which it applies are of Swiss origin.

The court upheld the registration. It ruled that the reference to any given country as part of a trademark does not violate the provisions of the Trademark Law and, in particular, does not mislead consumers as to the origin of the products to which the mark applies. The court reasoned that these latter provisions are only relevant where consumers may assume that certain characteristics inherent to a regional product are present in the products at issue.

In the case at hand, the court further found that:

  • most products in Class 30 (eg, coffee, tea and sugar) are not related to Switzerland;

  • consumers of products in Class 30 typically do not speak English and therefore are unlikely to associate DELISWISS with Switzerland; and

  • the obligation, under Argentinian law, to affix the phrase 'Argentine Industry' or 'Produce of Argentina' to all products rules out all possible confusion regarding their origin.

Fernando Noetinger, Noetinger & Armando, Buenos Aires

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