Electric razor dispute raises its head again

The Swiss Federal Supreme Court has confirmed, in a constitutional appeal procedure, a decision of the Superior Court of the Canton of Lucerne to reject Koninklijke Philips Electronics NV's petition for a preliminary injunction against Rayovac Europe Ltd (now known as Spectrum Brands Inc - the owner of the Remington brand of personal care products) to prevent Rayovac from marketing a Remington electric razor with three rotary blades in a triangular pattern (Case 4P.200/2006, October 24 2006).

Philips claimed that the design of the Remington razor head infringed its international registration for a three-dimensional trademark for a three-headed rotary blade design used for its own electric razors.

Philips's first instance petition to the court of Lucerne was based on trademark law and unfair competition. The court dismissed the unfair competition claim and Philips did not include this point in its later appeal. With reference to its arguments under trademark law, the Lucerne court held that Rayovac had provided sufficient evidence to suggest that Philips's three-dimensional mark was invalid. Philips brought an extraordinary appeal before the Federal Supreme Court.

Under the extraordinary appeal procedure, the Swiss Federal Supreme Court can review a decision only for arbitrariness. In the present case, it could not find arbitrariness in the summary judgment opinion of the cantonal court that Philips's three-dimensional registered trademark appeared to be invalid. The Supreme Court upheld the lower court's reasoning that the three-dimensional mark could not be protected as there was a technical necessity for third parties to be able to use that shape in view of the small number of possible shapes available for this type of product.

Accordingly, the Federal Supreme Court dismissed Philips's appeal.

For more on Philips's long-running struggle to maintain its rights in the shape of its electric razor head, see No injunction as shaver shape cancellation action likely to succeed and Court of Appeal takes close look at shape mark for shaver design.

Peter Heinrich, Lenz & Staehelin, Zürich