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Neuschwanstein Castle trade mark – bad news for the souvenir industry?

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Neuschwanstein Castle trade mark – bad news for the souvenir industry?

Neuschwanstein Castle trade mark – bad news for the souvenir industry?

What was the issue?

The owners of Neuschwanstein Castle (the famous German tourist attraction, pictured below) applied to register the word NEUSCHWANSTEIN as an EU trade mark, which it planned to use on souvenirs of the castle (such as cutlery, tea-towels, clothing).

Bundesverband Souvernir Geschenke Ehrenpreise e.V (“BSGE”) had previously had a couple of shots at invalidating the trade mark application, which were rejected by the EU-IPO, the EU-IPO Board of Appeal and the General Court of the EU. BSGE’s grounds for invalidating the NEUSCHWANSTEIN trade mark application were three-fold:

1. That the NEUSCHWANSTEIN trade mark was descriptive of the goods concerned;
2. That merely putting the word NEUSCHWANSTEIN on souvenirs of the Castle was insufficient to distinguish those souvenirs from other souvenirs made by other businesses;
3. That the trade mark application had been made in bad faith

BSGE took these three points to the Court of Justice in a final attempt to invalidate the trade mark.

What did the Court of Justice decide?

The strongest aspect of the BSGE’s appeal was point 1 above. Under this ground of appeal, BSGE argued that the name NEUSCHWANTSTEIN should be invalidated Article 7(1)(c) of the Trade Marks Regulation, which states:

7 The following shall not be registered:

(1)(c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;

This reflects the fact that, in essence, a trade mark should not be descriptive of the goods or services that it is registered for.

BSGE argued that members of the public might attach fond holiday memories to the name “Neuschwanstein” and that they would therefore make a connection between souvenirs bearing that name and Neuschwanstein Castle itself. BSGE also argued that, because the goods were sold and advertised at the castle itself, this connected the goods directly to the name NEUSCHWANSTEIN, which meant that the name was descriptive of the geographical origin of the goods. In other words, using the trade mark “Neuschwanstein” for use on souvenirs of Neuschwanstein Castle was geographically descriptive.

The Court of Justice, however, rejected the idea that the word “Neuschwanstein” could serve as a geographic indication for any of the souvenirs in question. It also said that the place where souvenirs were marketed/sold (in this case, in and around the site of the famous castle) did not necessarily connect those goods to the castle. The Court found that, because the castle itself was famous for its “unusual architecture” and not for the manufacture of souvenir items, the “Neuschwanstein” trade mark would not be struck down as being indicative of the geographical origin of the souvenirs in question.

The Court of Justice accordingly rejected BSGE’s appeal and upheld the NEUSCHWANSTEIN trade mark.

A bad ruling for souvenir manufacturers?

In a word, yes! In the writer’s opinion, the Court of Justice has misunderstood that the function of a souvenir of a place is to evoke memories of that place, not of the location where that souvenir is manufactured. If I see a tea-towel containing an image of Neuschwanstein Castle, I am reminded of the Castle and not the place where that tea-towel is made. After this decision, the owners of Neuschwanstein Castle effectively have a monopoly to use the word “Neuschwanstein” on souvenirs of the castle, which cannot be good news for other souvenir manufacturers (who will now have to think carefully about how they label and market their Neuschwanstein Castle products).

For more information, please contact Felix Dodd, or you can give us a call on 0345 070 6000.