German trademark law does not protect '@' symbol

Germany

The Federal Patent Court has held that a term containing the '@' symbol along with descriptive elements cannot be registered as a trademark under the German Trademark Act as it lacks distinctiveness (30 W (pat) 199/01).

The applicant sought to register '@ctiveIO' in relation to equipment and components for data communication. The German Patent and Trademark Office refused registration on the grounds that the sign lacks distinctiveness. The applicant appealed.

The applicant argued, and the Federal Patent Court agreed, that the 'IO' and 'active' elements of the term are descriptive. The former is a technical term for 'input/output', while the latter designates electrical equipment that process data by means of an internal processor. However, the applicant contended that replacing 'a' with '@' in 'active' made the term distinctive.

The court disagreed with the latter argument. It found that the symbol '@' lacks distinctiveness because it has become extensively used in fields of activity that are not internet-related, in particular the data communication industry. Use of '@', said the court, constitutes a common advertising technique to makes products appear technically innovative. As a result, it has lost its original meaning ('at') to become a decorative version of the vowel 'a'.

This judgment is in line with other decisions in which the Federal Patent Court has refused to register terms incorporating the '@' symbol as trademarks (eg, '[email protected] Card').

Lieselotte Friedlein, Beiten Burkhardt Goerdeler, Munich

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