AUS DER REGION. FÜR DIE REGION rejected: court sets formal opinion poll requirements

The Federal Administrative Court has confirmed and further developed its jurisprudence regarding the requirements for opinion polls that it laid down in its recent OKTOBERFEST-BIER decision (B-5169/2011) (for further details please see "Court assesses use of opinion poll in OKTOBERFEST-BIER case"). In a ruling of 27th February 2012 (Decision B-8240/2010) the court held that AUS DER REGION. FÜR DIE REGION (“From the region. For the region"), which was filed for trademark registration for use as a regional label for goods in Classes 29, 30, 31, 32 and 35 by Swiss supermarket giant Migros, was directly descriptive and had not acquired distinctiveness through use pursuant to Article 2(a) of the Trademark Act.

The court first stated that if an opinion poll was filed with the court, the court must show in its decision that it has considered that poll, regardless of its impact on the decision. Furthermore, the court set out formal requirements that opinion polls must meet in order to be admissible for its consideration of evidence. The fact that an opinion poll is not conducted with respect to determining the distinctiveness through use of a trademark may diminish its probative force, but it does not exclude that such opinion poll may contain useable information.

The court held that apart from the results, the person who files an opinion poll should also provide the interview, details of the organisation, the original questionnaire, information regarding the fieldwork and a signed summary of the opinion poll. Furthermore, the court observed that it is necessary to define the territory covered by the opinion poll.

Finally, the court addressed the wording of the questions in opinion polls, referring to its OKTOBERFEST-BIER decision, in which it set out the three-step question model. The questions should determine the spontaneous awareness, the aided awareness and the attribution of the trademark to a specific company.

According to the court, these formal requirements for opinion polls were not fulfilled in the present case, and thus the filed opinion poll could not be considered as evidence.

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