1. Mai 2019
When visiting Vienna, there is one thing on every sightseer's list: The Spanish Riding School, with its world-famous performances by the Lipizzans. The Lippizan "Maestoso Blanca" was presented to US President Ronald Reagan by the Austrian President Thomas Klestil in 1982.
More recently, the Austrian Patent Office (PTO) rejected the trade mark "Lipizzanergestüt Piber" (in English: Lipizzan breeding farm) as a word mark for clothing, footwear and headgear (in class 25) and services for providing food and drinks and temporary accommodation (in class 43).
The applicant is the owner of the horse breeding farm in
Piber, Styria. UNESCO has recognized the knowledge of Lipizzan breeding as an intangible cultural heritage. As a result, the Austrian PTO claimed that the term would not be considered as a trade mark but as a purely informative reference to goods and services offered in connection with a specific kind of horse.
The Austrian PTO came to the conclusion that "Lipizzanergestüt Piber" is a purely descriptive sign which leads to the result that the term is not registrable due to its lack of distinctive character.
However, the higher Regional Court in Vienna has ruled that the term has a distinctive character. In its decision the Court stated that the distinctiveness of the word mark "Lipizzanergestüt Piber" depends on how members of the relevant public understand it.
Since the breeding of Lipizzans in Piber and the Spanish Riding School are known throughout Austria, the Court did not believe that this would lead to any misunderstanding.
Secondly, the Court claimed that the term is unusual for the designated goods and services because there is a need for interpretation which makes it sufficiently distinctive.
Finally, it would contradict the CJEU's view if applicants, whose name and/or business are culturally and/or historically known, would not be able to obtain protection for the businesses based on that name and/or business.
Consequently, the term "Lipizzanergestüt Piber" is distinctive, and it is registrable as a word mark for clothing, footwear and headgear (in class 25), and services for providing food and drinks and temporary accommodation (in class 43).
One wonders what Lipizzan Maestoso Blanca would think about being part of the IP world today!