Is "Gute Laune" registrable as a trademark for beverages?

The Federal Patent Court (BPatG) in Munich was presented with the trademark application "Gute Laune". The BPatG had to decide whether this trademark was distinctive and thus registrable.

A beverage company wanted to register the word mark "Gute Laune" with the Patent Office in goods class 30. However, the Patent Office rejected the registration of the applied-for mark due to lack of distinctiveness. Thereupon, the applicant submitted the trademark application to the Federal Patent Court for a decision, since it considered the word sequence "Gute Laune" not to be a term that must remain free for use.

Court Decision
By means ofdecision of 24.11.2010 – Az. 25 W (pat) 527/10 the Federal Patent Court decided that the word mark "Gute Laune" lacked distinctiveness for goods class 30 and was therefore not registrable.

Distinctiveness is the concrete capability inherent in a mark to be perceived by the public as an indication of commercial origin. This is because the primary function of a mark is to guarantee the origin identity of the marked goods and services.

On this basis, the word combination "Gute Laune" could not be said to have the capability of serving as an indication of the commercial origin of the goods claimed here, since the word sequence "Gute Laune" is frequently used as a slogan or catchphrase in advertising. This slogan expresses that the goods/services so designated serve to create or maintain good spirits. However, this must be kept free for use by others and is therefore not registrable.

Conclusion

The trademark application and the subsequent proceedings are unlikely to have brought "Gute Laune" (good spirits) to the applicant. Perhaps the mark would have been registrable in the form of a word/figurative mark.