BIN LADIN stays on Swiss register

Switzerland

The Swiss Federal Commission of Appeal for IP Rights has overturned a decision of the Federal Institute of Intellectual Property (IGE) that revoked the registration of the mark BIN LADIN (Case MA-RS 01/02, June 30 2004). The commission held that (i) there was no legal basis for the revocation of a duly registered trademark, and (ii) BIN LADIN was neither offensive nor did it affect Switzerland's reputation.

Swiss company Falcon Sporting Goods AG, which reportedly has some connection with Yeslam Binladin - one of Osama Bin Laden's half-brothers - registered the trademark BIN LADIN on August 16 2001 in Switzerland. Falcon filed an international application under the Madrid Protocol on the basis of the Swiss registration. In July 2002 the IGE revoked the BIN LADIN mark on the grounds that, following the terrorist attacks of September 11 2001, BIN LADIN could (i) be offensive to large sections of the public, and (ii) affect the reputation and international relations of Switzerland. Falcon appealed.

The Federal Commission of Appeal for IP Rights overturned the IGE's ruling. The commission held that the legal basis for revoking decisions ex officio had been removed from the Swiss Trademark Act in 1993. This, the commission held, put in question the legal basis of the IGE's decision. Moreover, the commission stressed that a trademark constitutes an absolute property protected by the Swiss Constitution. Therefore, a revocation is only possible if very important public interests call for it.

The commission reasoned that, in the case at hand, the fact that the Swiss trademark registration was the basis for the international registration did not convey the impression that Switzerland was endorsing the attacks of September 11. As a matter of fact, the BIN LADIN mark was registered in Switzerland and in other countries before the attacks were carried out. The commission concluded that neither the reputation of Switzerland nor the public's feelings were affected by the registration. The commission further noted that the BIN LADIN mark could not be considered immoral since the surnames bin Ladin and bin Laden are common in Arabic countries.

Accordingly, it allowed the mark to remain on the Swiss register.

Markus R Frick and Oliver M Kunz, Walder Wyss & Partners, Zurich

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