10 position trade marks examination practice in switzerland n.
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10. Position Trade Marks - Examination practice in Switzerland. Marc Burki . Contents. Formal requirements Absolute Grounds for refusal Open questions. 1. Formal requirements. Sign shows clearly the parts no protection is sought for. Formal requirements II.

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  • Formal requirements
  • Absolute Grounds for refusal
  • Open questions

1 formal requirements
1. Formal requirements
  • Signshowsclearlythepartsnoprotectionissoughtfor

formal requirements ii
Formal requirements II
  • separate description of the trade mark is not compulsory
  • if description is filed, it has to match with the sign
  • application form: clear indication of the type of trade mark

formal requirements iii
Formal requirements III
  • congruencebetweenthesignandthegoodsprotectionissoughtfor

25 Footwear

protection for headgear is not possible

absolute grounds for refusal
Absolute grounds for refusal
  • non-conventional sign: the sign is identical to the appearance of the goods the application is filed for > different perception of this kind of sign by the targeted consumers than of conventional signs like word marks

absolute grounds for refusal ii
Absolute grounds for refusal II
  • Decisivecriteria:


> similartothecriteriatoassessdistinctivenessof 3d-signs.


7 Paint spray guns

Trademark protection is claimed for a green colored ring along the circumference of the front side of an air cap ring at a paint spray gun; the colored ring extends continuously around the circumference of the air cap ring; other distinctive features recognizable on the images of the paint spray gun are not a part of the mark

RKGE, sic! 2005, 747


refused applications

25 Footwear


Clothing namely, trousers, tights, shorts, culottes

The mark comprises the symmetrical presence of two identical scars placed astride on garment pockets and overlapping to half the width of the same; these scars resulting from an overlaying of fabric or leather comprising the garment in its lower part after folding on its upper part; the exterior contours of the garment are not claimed


refused applications II

16 anatomical models as instructional and teaching material


accepted application

25 footwear


open questions

- can a position trade mark be granted for services?

39 transport of passengers by car

open questions ii
open questions II
  • is it possible that the combination of a non-distinctive sign with a certain position leads to a distinctive overall impression?

open questions iii
open questions III
  • Assuming that the position of the graphical element plays a decisive role in the assessment of the distinctiveness of the sign as a whole. Does the sign has to be on an usual or an unusual position to be able to influence the distinctiveness?



open questions iv
open questions IV
  • changeofperceptionif a figurative distinctiveelementisfiled on itsownor in connectionwith a certainposition?

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