'A piece of Switzerland' not protectable as a trademark for cheese
The Swiss Federal Administrative Court has held that the tagline 'Ein Stück Schweiz' ('A piece of Switzerland') was highly laudatory and, therefore, could not be protected as a trademark (Decision B-2225/2011, May 7 2012).
The court upheld a decision of the Swiss Federal Institute of Intellectual Property, in which the latter had found that Swiss cheese producer Emmentaler Switzerland could not obtain trademark protection for its 'Ein Stück Schweiz' tagline, which is used for cheese together with the protected designation of origin 'Emmentaler'.
The court first stated that the tagline 'Ein Stück Schweiz' was memorable, brief and sounded like a buzzword. Moreover, the tagline could create a feeling of national identity among the relevant public - in particular in the context of cheese - so that it could be regarded as a slogan which was, at least in theory, suitable to acquire distinctiveness through use.
The court then considered whether the phrase belonged to the public domain, and found that 'Ein Stück Schweiz' was not perceived literally as meaning 'part of the Swiss territory'. Rather, the tagline would be understood as referring to a product that was part of Swiss cuisine, tradition, agriculture and eating habits. Since many Swiss products and services enjoy a reputation in Switzerland and abroad for their quality and traditional production methods, references to the Swiss origin of a product or service in marketing material generate considerable goodwill. Hence, the court considered that the tagline 'Ein Stück Schweiz', when used in connection with cheese, was highly laudatory and a common figure of speech. Therefore, irrespective of any ambiguity in the meaning of the phrase, the tagline was part of the public domain.
In the court’s opinion, there was no need to keep the tagline free for use in commerce, as there were many other ways of referring to Swiss quality, tradition or cuisine.
Finally, the court examined whether the trademark had acquired distinctiveness through use. It concluded that the evidence provided by the applicant was not sufficient to show that the mark had acquired distinctiveness through use, particularly due to the fact that the tagline had only been used for approximately seven months prior to the date of the application.
Markus Frick and Jonas Knechtli, Walder Wyss AG, Zurich
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