"Mozart" is descriptive for Liquor

At first sight one might think of music and not of liquor in connection with "Mozart". However, the Austrian Supreme IP Tribunal recently ruled descriptiveness of "Mozart" for liquor as being notorious.

The owner of the registered Austrian trade mark "MOZART" which protects alcoholic beverages (except for beers and liquor) in class 33 requested an extension of the goods such that class 33 would cover all alcoholic beverages (except for beers). The Austrian Patent Office and its Boards of Appeal rejected this request as they considered that the extension would lead to a protection of "Mozart" for liquor. However, for liquor "Mozart" is considered as being descriptive. These findings were also confirmed by Austria's highest IP court.

"Mozartkugeln" (Mozart balls) are very successful sweets on the Austrian market. The ball-shaped sweets consist of green pistachio marzipan covered in a layer of nougat dunked in a dark chocolate coating. Accordingly, the IP Tribunal found that the average consumer understands the sign "Mozart" with respect to liquor only as being descriptive for such a combination of marzipan, nougat and chocolate. Thus, "MOZART" could only be registered as a trade mark by proving acquired distinctiveness by the applicant.

Accordingly, this judgment is an example that through intensive use of an unregistered, however originally non-descriptive term for specific goods a sign can also become descriptive for other, however similar goods.

Dr Rainer Beetz, LL.M.