February 15, 2015
Back to Bulletin Main Page
GERMANY: "For You" May Be Registered as a Trademark
In a decision published in December 2014, the German Federal Supreme Court found that the mark FOR YOU is not descriptive for goods in the health and food sector and does not lack sufficient distinctiveness (German Federal Supreme Court, decision dated July 10, 2014, legal case I ZB 81/13 – for you).
A third party had applied for cancellation of the mark FOR YOU, arguing that it lacked distinctiveness and should remain freely available on the market. While the German Patent and Trademark Office (DPMA) rejected the request for cancellation, the German Patent Court had the trademark canceled. The German Patent Court found that the mark was composed of simple words in the English basic vocabulary that were easily understood by the relevant consumers. These words were understood as addressing the consumer directly, giving the consumer a feeling of individual treatment. The words “for you” were therefore nothing but a promotional statement and were not suitable to serve as indication of origin. The case was then referred to the German Federal Supreme Court.
The Supreme Court confirmed that the sign FOR YOU was composed of simple words in the English basic vocabulary. However, the Court said that the Patent Court erred in finding that, in connection with the goods concerned, “for you” was understood as an indication of goods especially adapted to individual needs. The goods concerned were meat, eggs, milk and others that did not per se allow any individual adjustment to the consumer’s personal needs. Even if dietary supplements were offered to a group of consumers to address that group’s needs, it did not mean that the goods concerned were individually adjusted to a single consumer’s personal needs.
The Patent Court had not established that “for you” had been used as a promotional indication of quality neither at the time of filing nor at the time of registration. Also, it had not been established that the relevant consumers would understand “for you” exclusively as a promotional message so that “for you” could not be considered devoid of any distinctive character.
The Supreme Court also observed that the relevant point in time for assessing distinctiveness would have been the time of filing, not the time of registration. However, that the Patent Court had based its assessment of distinctiveness on facts at the time of registration rather than filing had no impact because neither party had claimed any change of the consumers’ understanding between the time of filing and the time of registration.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2015 International Trademark Association