Austria: Supreme Court confirms Fair use is devoid of distinctiveness
The case reported here concerns the application for registration of a figurative mark containing the word element "FairUse" in relation to print media (class 16), services in class 35 (computer databases, computer networks), class 38 (electronic communication) and class 41 (online publication of electronic newspapers).
The Austrian Patent Office and the appeal court both denied registration of the trade mark for lack of distinctiveness. The applicant took this case to the Supreme Court, but without success. In its decision, the Supreme Court remarked that "fair use" is a legal doctrine in US copyright law that permits limited use of copyrighted material without acquiring permission from the rights holders, for example in schools.
The Supreme Court went on to state that the term "fair use" has also been used in Europe, for example in respect of the reform of copyright law. Thus, the targeted consumers will perceive the sign as an indication that use of the offered goods and services is not subject to a contractual licence, but is legitimate within the boundaries of "fair use".
The findings of the Supreme Court seem "fair use" of the case law of European courts, which have become increasingly reluctant to accept strongly allusive terms for trade mark registration. The Austrian courts also follow the European lead in that minimal graphical adornments will not pave the applicant's way towards trade mark registration.