'Savannah' will be understood as reference to vegetation, rather than US town

The Federal Administrative Court has held that SAVANNAH could be registered as a trademark for clothing (Case B-1818/2011, July 18 2012).

Peek & Cloppenburg KG (Düsseldorf) sought to register the mark SAVANNAH for clothing in Switzerland. The Swiss Federal Institute of Intellectual Property (IGE) refused, citing the concerns that:

• the relevant public (ie, the general population) would understand SAVANNAH as referring to the town of Savannah, Georgia, United States; and
• the mark was therefore misleading, as the goods did not necessarily originate from the United States (according to the Swiss practice concerning geographical indications used as trademarks).

The Federal Administrative Court disagreed. First, it criticised a survey submitted by the applicant which purported to show that a majority of the population would understand SAVANNAH as referring primarily to a form of vegetation because:

• the sample size of 504 respondents was too small (according to the court, a sample size of 1,000 was required); and
• the question format was not to the court's liking.

Nevertheless, the court came to the very same conclusion as the demoscopic survey based on its own common sense ('Lebenserfahrung'), and held that SAVANNAH would be primarily understood by the Swiss public as a reference to a form of vegetation, and not as a reference to Savannah, Georgia. Hence, SAVANNAH could be protected as a trademark, as it is not descriptive of the goods claimed.

Arguably, it is wrong to base a decision on one's 'common sense' rather than on a survey. In addition, claiming that a sample size of 500 respondents leads to a drastically reduced weight of evidence compared to a sample size of 1,000 shows a lack of understanding of what sample sizes - and the resulting confidence intervals - means.

The decision could be appealed to the Supreme Court by the IGE; however, as the case turns on factual issues, this would be surprising.

Mark Schweizer, Meyerlustenberger Lachenal, Zurich