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Is there a monopoly on the Christkindl?

Who doesn't fondly remember the carefree Christmases as a child in Switzerland, watching your parents' every move with rosy cheeks and gleaming eyes in joyful anticipation of the Christkindl? Maybe you’ll get to experience this all over again in the coming festive days with your own children. But are you actually allowed to shout throughout the house on Christmas eve, “The Christkindl’s been!”?

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If you consult the international Trade Mark Register, you’ll find the trade mark 'Tchibo – The Official Partner of the Christkindl’ registered in German under registration number 920121A. Is the Christkindl now collaborating with franchisers? There’s no record of a license agreement, yet the question remains: what rights can the trade mark owner assert against anyone using the designation Christkindl?

  

What is the scope of protection of a trade mark?

A trade mark gives its owner a monopoly right to use the registered sign in the country in which it is registered. This protection applies to the goods and/or services listed in the Trade Mark Register. The trade mark ‘Tchibo – Official Partner of the Christkindl’ is registered in Switzerland for goods including jewellery, printed matter, clothing, toys and patisserie. So does this mean that because the term Christkindl is used in Tchibo’s registered trade mark, we’re now limited to figures such as a Christmas elf, a Christmas troll or a Christmas fairy when putting gifts that belong to a protected class of goods under the Christmas tree? Perhaps a petition to the post office would help, suggesting that from 1 December, postal workers delivering parcels should only be allowed to ring the door bell when they’re wearing strapped on angel wings.

  

It's not so bad!

But wait... the situation actually looks worse than it really is. At least for now, we  – and postal workers – are spared this cultural horror story. On the one hand, the registration of the phrase ‘Vendor – Official Partner of the Christkindl' doesn't imply that the term Christkindl is protectable as a trade mark. On the other hand, protection is limited to goods or services which are at least similar to those registered. For this purpose, trade mark law recognises what is known as the ‘principle of speciality’. So when the Christkindl has put all the presents under the Christmas tree, he has provided a shipping and transport service. These services are not protected by the registered trade mark, however.  

So if you invite your loved ones to a a joyous celebration of Christmas with the cry “The Christkindl’s been!”, you’re spreading joy everywhere – and not infringing any trade mark rights. We’re all being forced to endure enough restrictions these days, so moments of pure, childlike joy, as well as gestures of affection, trust and thinking about one another – however large or small – are now all the more important.

We wish you a wonderful festive season and happy holidays.

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