"TSCHIN": Not registrable as a word mark

OLG Vienna 10.01.2022,


The Austrian Patent Office (ÖPA) prohibited the word mark "TSCHIN" from being registered in goods classes 32 (non-alcoholic beverages) and 33 (alcoholic beverages) on the grounds of lack of distinctiveness and deceptiveness. Within the relevant public, the sign creates the impression that it is gin and related products. 

The Vienna Higher Regional Court confirmed the legal opinion of the Austrian Patent and Trademark Office (ÖPA) and held that "Tschin" qualified as a verbalization (Germanization) of the word "Gin". Whether a sign is distinctive and thus registrable as a trademark is to be assessed on the basis of its overall impression and the goods and services for which the sign has been applied for. For the goods in Class 33 (various alcoholic beverages), "gin" is known to the target public as a general term for a spirit with juniper. Therefore, the sign for beverages containing gin (class 33) lacks distinctive character. For this reason, the sign is excluded from registration as a trademark (Sec. 4 (1) (3) MSchG). In connection with the application for registration for various non-alcoholic beverages (Class 32) and for those goods in Class 33 to which this does not apply (alcoholic beverages not containing gin), the use of the word sign "TSCHIN" is likely to mislead a legally not inconsiderable part of the public. Therefore, the sign must be refused registration in the trademark register also because of its deceptiveness (Sec. 4 (1) (8) MSchG).