Lack of distinctive character of the "Hamsterkarte"?

The German Patent and Trade Mark Office rejected the registration of the designation "Hamsterkarte", inter alia for the goods "customer loyalty cards for bonus and rewards programmes". Was the Trade Mark Office correct?

The word "Hamsterkarte" was filed as a trade mark for registration in the trade mark register maintained by the German Patent and Trade Mark Office. The applicant wished to file the sign, inter alia, for the category of customer loyalty cards for bonus and rewards programmes.

The Trade Mark Office rejected registration in the trade mark register on the grounds that the designation Hamsterkarte was purely descriptive for the goods "customer loyalty cards for bonus and rewards programmes" which were the subject of the application. It therefore lacked any distinctive character.

The applicant then had this decision reviewed by the Federal Patent Court (Bundespatentgericht) in the course of an appeal procedure.

Decision of the Court

By Decision of 03.08.2015 – Az. 25 W (pat) 509/14 – the Federal Patent Court (Bundespatentgericht) confirmed the decision of the DPMA and ruled that the designation "Hamsterkarte" for the category of customer loyalty cards for bonus and rewards programmes was not capable of registration as a trade mark, as it lacked any distinctive character.

In its reasoning, the Federal Patent Court (Bundespatentgericht) stated that the sign applied for, which was composed of the constituent parts "Hamster" and "Karte", would be understood by the relevant public in the context of the goods and services claimed, directly in the meaning (literally) of a card suitable for hoarding, or (in sense) of a card for collecting reward points. Accordingly, it did not possess any distinctive character.

Conclusion

Distinctive character is the inherent concrete suitability of a trade mark to be perceived by the public as an indication of commercial origin. In the designation "Hamsterkarte", the public understands a general description of a customer loyalty card with which discounts can be obtained. For this reason, registration was rejected on the grounds of lack of distinctive character.