FITAMIN - trademark by 'misspelling' a general term?

It is not easy to invent a brand name that is meaningful and yet does not belong to the general vocabulary or is descriptive of the intended area of protection.
Time and again, therefore, attempts are made to create a good and protectable brand name by modifying terms or even well-known brands.
This was also the case in the FITAMIN case, which was recently decided before the German Federal Patent Court (BpatG). A brand name by 'misspelling' is a general term - is such a thing protectable?

FITAMIN: Rejected for lack of distinctiveness

The German Trade Mark Office (DPMA) had refused the application for protection of the word mark FITAMIN for goods of Nice classes 3 and 5 due to the word mark's lack of distinctiveness (under § 8 (2) no. 1 MarkenG). For the assessment of the protectability of a sign depends on the distinctive character or the need to keep the sign free (see BGH GRUR 2003, 436, 439 - Feldenkrais). A trademark must have an inherent capacity to be perceived by consumers as a distinctive sign of a certain manufacturer. This is the main function of a trademark.
The question was therefore whether the word mark FITAMIN fulfilled this function.

BGH case law on modified terms

The Federal Patent Court first considered established case law. According to the case law of the Federal Supreme Court (Bundesgerichtshof, BGH), the decisive aspect is whether the modified designation has an individualizing characteristic.
If, however, consumers easily recognize a common technical or factual term in the deliberately perceived variation, the variation recognized as such lacks the required distinctiveness (BGH - OMEPRAZOK).

The same applies if the public does not notice the only slight variation or considers it to be a typographical or aural error (BPatG 28 W (pat) 154/08 - NATURLICH). Considerations as to whether the deviation is considered to be an unconscious typographical error or a stylistic device deliberately used in advertising are also irrelevant, as long as the underlying factual statement remains recognizable (BpatG 30 W (pat) 25/06 - SCHLÜSEL).

Is FITAMIN read as VITAMIN?

In relation to the disputed mark FITAMIN in the present case, this led to a clear decision by the Federal Patent Court. The term "vitamin" is so familiar that consumers will immediately notice the incorrect spelling, the court explained. However, the alienation by replacing "V" with "F" was not sufficient to lead away from the directly descriptive product and the technical indication "vitamin".
The BPatG referred to the so-called stereotype theory (BPatG 28 W (pat) 138/98 - Vita-Min), according to which the perception of linguistic expressions takes place almost automatically on the basis of predefined categorisations. Readers or listeners, therefore, perceive a term - irrespective of its incorrect spelling - as the typical and most frequently occurring expression of the term.

FITAMIN would therefore automatically be read as VITAMIN. The appeal of the trademark applicant of the word sign was therefore dismissed in its entirety (26 W (pat) 521/20).

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