While a degree of ambiguity does not normally give a sign sufficient distinctiveness, this may be different for entirely vague signs. However, the legal situation is not particularly precise in this area. According to a decision of the GC, the claim that a sign is imprecise and vague, which is not supported by precise information, should not be sufficient to establish distinctiveness.^[1] In contrast to this, the BGH wants to conclude sufficient distinctiveness from a certain ambiguity and need for interpretation of a sign.^[2] However, it is not sufficient if only different descriptive possibilities for interpretation exist.^[3]
However, since the CJEU wishes to take into account the public interest in not unjustifiably restricting the availability of the sign for other economic operators in its examination of both distinctiveness and descriptive indications of characteristics,^[4] the assessment for the two grounds for refusal can hardly be different. However, if the registration of a descriptive indication is already precluded by the fact that it is descriptive in one of its possible meanings, then an ambiguity alone will not normally suffice to establish sufficient distinctiveness either.^[5] The situation can only be different if, due to the imprecision of the term with regard to the specific products, the public no longer assumes that the term will be used in one of its conceivable meanings. Only then will the public assume that the term is an indication of origin.^[6]
For example, the term ‘GOLF USA’ for clothing is not sufficiently vague to not be perceived by the public primarily as a combination of a geographical indication with a functional designation of the product.^[7] Even if, for example, a term such as the designation ‘LOGO’ is used in everyday advertising as a general promotion and primarily to attract attention, competitors who want to use the sign as an eye-catcher – and therefore packaged similarly to a trade mark – run the risk of being unexpectedly attacked. Since the public does not expect any indication of origin, the conceptual fuzziness of the term will not be able to confer distinctiveness, contrary to the view of the BGH.^[8] Similarly, the phrase ‘RATIONAL SOFTWARE CORPORATION’ can be used descriptively for IT products. The ambiguity of the term ‘RATIONAL’ should therefore not lead to protectability, again contrary to the opinion of the BGH.^[9] HOT is also not distinctive for cleaning agents, body care products, food supplements, printed matter and clothing because it has several meanings (here, in addition to ‘hot’, it also means ‘spicy, hot and savoury’ in relation to taste and, in a figurative sense, also ‘sexy, trendy, great’).^[10] The word ‘DeutschlandCard’ was also not protectable in relation to various IT-related goods, because the public could at least assume a connection to an electronic system of maps.^[11] By contrast, the line beyond which protection is no longer possible was likely to have been crossed in the case of the word mark ‘INDIVIDUELLE’ for body and beauty care products, jewellery and clothing, where no predominant factual message could be identified.^[12] The term ‘Starsat’ for television sets and accessories was also eligible for protection because it did not necessarily have to be understood by the public as ‘bester Satellit’ (best satellite), but could also have the more far-reaching and thoroughly creative meaning of ‘Sternensatellit’ (satellite of stars).^[13] Finally, the sign ‘Deutscher Ring Sachversicherungs-AG’ was registrable because the doubling of ‘Ring’ and ‘AG’, both of which indicate a merger, is unusual.^[14]
In addition, according to the BGH,^[15] a designation that does not directly concern the product itself is only deemed to lack distinctiveness if the designation has such a close descriptive relation to the individual products registered that the public immediately and unequivocally recognises the descriptive content as such and therefore does not see the designation as a means of distinguishing the origin of the registered products.^[16] Indications that refer to circumstances that do not directly affect the products themselves are also devoid of distinctive character if a close descriptive reference to the registered products is manufactured by the indication and it is therefore justified to assume that the public will readily and unambiguously grasp the descriptive meaning as such and will not see the designation as a means of distinguishing the origin of the registered products.^[17]
Thus, for example, the lack of distinctiveness of the designation ‘BerlinCard’ cannot be justified solely by the finding that the public understands the designation ‘BerlinCard’ in connection with a wide variety of products as an indication that these are available or can be used in the context of a card system. Rather, the protectability should be examined in detail.^[18] In contrast, a sufficiently direct association can be evoked with very well-known descriptive indications such as ‘Fussball WM 2006’ (2006 Football World Cup), so that such an indication will regularly lack distinctiveness for all types of goods and services.^[19] In the case of a less precise designation such as ‘WM 2006’, a differentiated examination of the specific case is required.^[20]