30. November 2018
The Austrian Patent Office, as well as the Appeal Court, rejected the registration of the term “Stimmung hoch zwei” (in English: mood squared) as a word mark for beers (in class 32) and other alcoholic drinks (in class 33). Both stated that the term is purely promotional and would convey a desirable state of mind and therefore be descriptive for beer in so far as alcoholic beverages are capable of influencing the state of mind and mood.
Furthermore it was argued that the public would recognize the term as an advertising slogan and would assume that the mood means a good mood. Compared to an earlier decision concerning the term, Gute Laune Tee (in English: good mood tea), the intended purpose of tea is not clear and not always describes a 'good mood' because tea is also used to achieve other primary effects (eg to alleviate colds or stomach upsets). Whereas with alcoholic beverages the desired effect on the mood and change of mood is much more obvious.
However, in a recent decision, the Austrian Supreme Court ruled that a mark has distinctive character if, in addition to its advertising function, it may easily be perceived by the relevant public as an indication of the commercial origin of the goods or services concerned. This is the case where marks not only consist of an ordinary advertising message but also have an originality or conciseness requiring at least a minimum amount of interpretation.
The term “Stimmung hoch zwei” (in English: mood squared) is more than just an ordinary advertising message because of its originality which requires a minimum of interpretation to be understood. The mathematical term “hoch zwei” (in English: squared), which follows the word mood, requires a thought process in order to be recognized as such and to be understood as meaning a spirited, ie a particularly good, mood.
The word 'mood' can trigger ambiguous and diverse associations and does not make the addressee think primarily or even exclusively of mood-enhancing substances in connection with alcohol consumption (especially due to the fact that alcohol abuse can also lead to a depressive mood).
The term is therefore not an indication of intended use, but rather - similar to “good mood tea” - associated with a desirable mood and can therefore serve as an indication of the commercial origin of beers (in class 32) and other alcoholic drinks (in class 33).