Richemont’s trademark application 58809/2016, a stylised fish, for watches etc. in class 14 had been rejected. The IPI held that the sign was of religious content, and its commercial use would offend the religious feelings of an average member of Christianity. The rejection was based on Art. 2 lit. d TmPA, i.e. the sign was held to be contrary to morality.
Indeed, the Christian Ichthys symbol looks somewhat similar:
Still, there are differences: The comparatively large caudal fin, in relation to the body; and the fin is closed in Richemont’s version, but open in the Ichthys symbol. However, both the IPI and the FAC held that these differences do not alter the overall impression of the sign which is still perceived as an Ichthys symbol; ¶4.5.
Next, the FAC had to assess whether the use of the sign as a trademark was likely to offend the religious feelings of an average member of Christianity.
Prior case-law had rejected trademark applications when they concerned figures who occupy a central position in the respective religions; e.g., the FAC had confirmed the IPI’s rejection of the trademark ‘Madonna (fig.)’, IR 855’013, with decision B-2419/2008 of 12 April 2010, and the Supreme Court again confirmed this assessment; 136 III 474, decision of 22 September 2010.
The FAC reiterated again from its prior ‘Madonna (fig.)’ decision that the position of the religious figure in the respective belief system must be examined. The mere fact that the Madonna was not part of the Trinity did not exlude immorality. The intense veneration of the Madonna, which clearly goes beyond the veneration of certain saints, suggests a central role for the majority of Christians belonging to the Catholic Church. It followed that, under certain circumstances, the commercial use of signs which are not directly central to a religious community may still be considered immoral. On the other hand, not every use of a sign that has a religious meaning is automatically immoral. Rather, the disputed sign must play a central role in the religious community in question. The sign must have an important religious meaning and the commercialization of the sign must be likely to violate religious feelings of the member of this religion and endangering social peace, for it to be excluded as immoral.
Now, is the stylised fish really a central symbol of Christianity, as the IPI had argued?
The FAC held that this is not the case. In comparison with the signs previously regarded as immoral because of the violation of religious feelings, the disputed mark has no important religious meaning; ¶5.4.
Im Vergleich mit den bisher wegen Verletzung des religiösen Empfindens als sittenwidrig erachteten Zeichen kommt der strittigen Marke […] kein wichtiger religiöser Sinngehalt zu.
The FAC noted that the fish symbol surely had an essential meaning in early Christianity, but it already existed in very different forms at that time. The symbol, consisting of two curved lines, then essentially got forgotten for almost two millennia. It was not until the 1970s that it was rediscovered in its present form. As a symbol for Jesus, however, the sign is rather secondary. The central sign of Christianity is and remains the cross (see ‘Das Kreuz mit dem Fisch‘, referred to in the decision).
Although the Ichthys symbol is relatively widespread, its religious significance for Christianity is not on the same level as the Trinity (Father, Son and Holy Spirit) or the Cross symbol. The meaning of the sign is also not comparable with the value of the Mother of Jesus (Madonna), who is intensely venerated, which is why she also has a central role. The Ichthys symbol does not play such a central role. The symbol is not used by name in religious rites, is neither venerated nor worshiped.
The meaning of the fish symbol thus shares the fate of numerous other Christian signs which have religious connotations, but which do not play a central role in the religious community or in religious symbolism, such as the signs Alpha and Omega, Anchor, Dove, Water, etc. (see e.g. ‘Symbole des Christentums‘ (Wikipedia) and ‘Christliche Symbole‘, both referred to in the decision).
Accordingly, the FAC held that it cannot reasonably be assumed that the commercialization of the Richemont fish is likely to violate the religious feelings of the average member of Christianity, in particular since extreme sensitivities are not taken into account (see 136 III 474, ¶4.2). Further, the FAC noted that there are numerous previous registrations of marks which clearly identify the disputed Ichthys symbol, and similar signs have been used in commerce for a long time without any apparent violation of religious sensibilities.
As always, I cannot help but wonder about the background of the matter: What’s the purpose of Richemont’s fish?
Frankly, I don’t know.
Reported by Martin WILMING
Panel of Judges:
- Daniel WILLISEGGER
- David ASCHMANN
- Pietro ANGELI-BUSI
- Pascal WALDVOGEL
Representative(s) of Richemont:
FULL TEXT DECISION
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