Is the trade mark "Dry Speed" purely descriptive for dry drilling bits?

The Federal Patent Court (Bundespatentgericht) had to decide whether the trade mark "Dry Speed" is purely descriptive for the registered goods and services and thus lacks any distinctive character necessary for registrability.

A manufacturer of electrical accessories wanted to register the designation "Dry Speed" as a trade mark for the following goods in classes 7 and 8 with the Patent Office:

"Power tools, parts of or accessories to power tools, namely drills, drill crowns, chisels, tool holders and adapters; hand-operated tools, namely drills".

The trademark division rejected the application for lack of distinctive character. The rejection was justified on the grounds that the trade mark word, as a language-typical combination of the two English terms "Dry" and "Speed", in relation to the claimed goods contained a descriptive indication that these were dry drilling bits that could be operated at relatively high speed.

The applicant has lodged an appeal against this, arguing in support thereof that the trade mark as a whole does not have a product-descriptive meaning. The term "Dry Speed" is a word that cannot be lexically verified in the English language and is not the customary technical term for "dry drilling" or "dry drilling".

Court's decision
The Federal Patent Court (Bundespatentgericht) confirmed in its order of 30.03.2011 – Az. 28 W (pat) 581/10 the legal opinion of the trade mark proprietor and set aside the decision of the trademark division.

The trade mark words "dry" and "speed" belong to the basic English vocabulary and are understandable to the relevant end consumers in the sense mentioned, so that with language-regular interpretation of the applied trade mark, the nearest meaning for the public would be "dry speed". With these concept contents, however, the applied trade mark is manifestly unsuitable for product-related description of the goods relevant here. Even if "dry drilling bits" are known in the tool sector and the respective speed performance of drilling machines can play a relevant role, the word sequence "Dry Speed" with its meaning of "dry speed" in no way meets the requirements for a sufficiently precise description of relevant product features. Instead, the concrete combination of the two words results in a product-remote artificial term with at most suggestive meaning content, to which a certain originality and distinctiveness cannot be denied.

The applied trade mark thus has the required distinctive character and is to be registered by the Patent Office.

Conclusion

The Patent Office correctly comes to the conclusion here that the public would need multiple targeted thought processes in relation to the trade mark "Dry Speed" in order to establish a concrete product reference between the statement "dry speed" and dry drilling machines with particular speed performance. This would have been assessed differently if the trade mark had directly described the products of the applicant.