Trade mark cancellation due to lack of distinctive character after four years?

The Federal Patent Court (Bundespatentgericht) in Munich had to decide in cancellation proceedings whether the sign "jungbrunnen", registered in 2008 inter alia for coffee, tea and confectionery, could indicate commercial origin or whether the trade mark should be cancelled due to lack of distinctive character.

The German trade mark "jungbrunnen" registered by the Patent Office faced a cancellation application four years after registration of the sign. The applicants are of the opinion that the term "jungbrunnen" has always been understood as a "fountain of eternal youth". In this sense, the expression "Jungbrunnen" is used in countless publications to convey a promotional and descriptive product promise, but not to indicate commercial origin.

Court decision

The Federal Patent Court (Bundespatentgericht) decided by Order of 22.05.2012, Az. 27 W (pat) 26/11, that the trade mark "jungbrunnen" should be cancelled due to lack of distinctive character. The sign was understood by the relevant public merely as promotional advertising and thus does not convey an indication of commercial origin.

The court justified the ordered cancellation also on the grounds that the registration impediment already existed at the time of registration and also still exists at the time of the court's decision, so that the conditions for cancellation were met.

Conclusion

The cancellation of a German trade mark can be applied for up to ten years after the date of registration of the sign if, as in the present case, a registration impediment exists on the date of registration and this still exists at the time of the cancellation application.