Which sign cannot be a trade mark?

PrintPDF Share

A trade mark should distinguish the goods or services designated by it from other similar kinds of goods or services. Therefore, any sign cannot be a trade mark. Some signs should remain available for use by all entrepreneurs.

For example, the following signs cannot be trade marks:

  • signs which are devoid of any distinctive character,
  • signs which designate the characteristics of the goods or services;
  • signs which have become customary in the particular field of activity or in general business practice;
  • signs which are of such nature as to mislead the consumer;
  • genuine and ordinary images of products or packages;
  • signs which are contrary to public order or accepted principles of morality.

If a non-distinctive, descriptive or customary sign is included in a trade mark, it is not subject to protection. The proprietor of the trade mark does not have an exclusive right for the use of that part of the trade mark, i.e. such signs can be used freely by other entrepreneurs, even if the registered trade mark contains any of them.

As an exception the non-distinctive, descriptive or customary sign can be registered as a trade mark if it has acquired a distinctive character during the long-time consistent use of a trade mark. A trade mark has acquired the distinctive character if it is known to the target group of the particular goods or services.

Absolute circumstances which preclude legal protection (Trade Mark Act § 9)

Last modified 02.04.2019