AFRI-COLA comes from Africa

The Swiss Intellectual Property Institute refused registration of the international trademark AFRI-COLA for goods in International Classes 29 and 30 (which cover goods including coffee, coffee substitutes, tea, salt, sugar and rice) on the grounds that the mark was descriptive and deceptive for goods that did not come from Africa.

On appeal, the Federal Administrative Court confirmed the decision. However, the court partially rejected the institute's decision as, with respect to some goods (eg, ice cream), the average Swiss consumer does not consider Africa to be a place of production.

On 10th March 2009 the Supreme Court upheld the judgment (4A-508/2008). It observed that every producer must be free to indicate the origin of its goods and services. Therefore, geographical indications must be available in cases where the possibility that other producers will establish their business in the corresponding region cannot be excluded. This rule not only applies if the geographical indication is understood to be an indication as to the geographical source of the labelled products at present, but also applies if in future the indication could be used as such by other enterprises.

The court then stated that a mark is deceptive if it contains a geographical indication and if the relevant public is likely to believe that the goods originate in that place, when in fact they do not. AFRI-COLA contains a generally known geographical indication. Such marks generally evoke the idea in the minds of consumers that the product originates from the designated place. This empirical judgement applies regardless of whether or in what amount the respective goods are actually being imported from the designated region.

The court concluded that in this case, there was no evidence which could exclude the possibility that the mark could be understood as a geographical indication. According to the court, the mark was neither a mere fanciful word nor of evident symbolic value. Furthermore, there was no reason to assume that Africa was not considered a possible place of production by the relevant consumers. The situation would be different in cases of marks containing the name of unsettled regions, mountains, lakes or rivers.

The lesson to be learned from this decision is that Switzerland has become a tough venue for trademarks containing geographical indications. This is due to the fact that, according to the Supreme Court, Swiss consumers can easily be deceived and therefore must be thoroughly protected. Whether this is in line with jurisprudence in other European countries is doubtful.


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