Opposition to 6AZ hit for six
The Federal Administrative Court has overturned (Case B-7466/2006) an earlier decision and has dismissed an opposition against an application to register the device mark 6AZ in stylized characters for various goods and services, mainly relating to publishing and magazines.
The Swiss Company 6az GmbH applied to register the mark in Classes 9, 16, 25, 35 and 41 of the Nice Classification. This application was opposed in part (in Classes 9, 16 and 41) by AZ-Medien AG on the basis of its senior trademark AZ which it uses in conjunction with its Aargauer Zeitung newspaper and which is registered in Classes 9, 16 and 41. The Swiss Federal Institute of Intellectual Property (IGE) upheld the opposition and stated that this was due to the fact that the 6AZ mark incorporated the earlier mark and because of the proximity of the goods and services in question. This was sufficient, in the IGE's opinion, to find a likelihood of confusion.
6az GmbH subsequently appealed this decision and brought the case before the Federal Administrative Court. The court first noted that acronyms generally are registrable and while they are usually treated the same way as other trademarks, differences in acronyms or abbreviations are more obvious to the public than between other trademarks. The court went on to state that the acronym 'AZ' is often used by third parties in connection with print media, such as Aachener Zeitung (newspaper of Aachen), Arbeiter Zeitung (labour newspaper) or Abendzeitung (evening newspaper). Therefore, it considered the trademark AZ to be a weak mark.
Turning to the degree of similarity between the marks, it held that:
- they were aurally dissimilar due to differences in the number of syllables and as a result of the use of the figure '6' in the later mark;
- the marks also differed in that the 6AZ trademark was stylized, in particular, the figure '6' was accentuated and turned slightly counter-clockwise; and
- with regard to the meaning of the marks, the addition of the figure '6' gave the 6AZ mark a different meaning and possibly hinted at the erotic content of 6az's publications (the number six is pronounced 'sex' in German).
Considering these factors, the court dismissed the opposition and overturned the earlier decision. Since no appeal to the Supreme Court is possible in opposition proceedings the decision is final.
Marco Bundi, Meisser & Partners, Klosters
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