For a sign to have distinctive character as a trademark, it is not enough to be different from well-known signs, but it must be original in its form and content to such an extent that its specific features provide the possibility of individualization and the goods that are marked must be clearly distinguishable and identifiable from other goods

On January 22, 2026, the Supreme Administrative Court of the Slovak Republic, by judgment Case No. 4Shk/4/2025, dismissed the cassation complaint  against the judgment of the Administrative Court in Banská Bystrica (hereinafter referred to as the ‘Administrative Court‘) in the matter of registration of a trademark of a supplier of hygiene products (hereinafter referred to as the ‘applicant‘) against the Industrial Property Office of the Slovak Republic (hereinafter referred to as the ‘Industrial Property Office‘). The Supreme Administrative Court stated that a sign which does not fulfill a distinctive function cannot become a trademark. A sign possesses distinctive character if it enables the consumer to distinguish the products or services of one entity from those of others. 

The Industrial Property Office refused the applicant’s trademark application because the product for which he wanted to obtain a trademark did not have distinctive character according to the Industrial Property Office. The Administrative Court, where the applicant filed an administrative action, ruled that the applicant had not overcome the ineligibility for registration and had failed to prove to the Industrial Property Office that the applied-for sign had acquired distinctive character through use. 

The Cassation Court examined two objections of the applicant: on what objective basis did the Industrial Property Office assess whether words in a foreign language are common and on what basis did it conclude and how it concluded that their meaning is sufficiently known to the relevant Slovak consumer public to be understood. 

Section 5 of the Trademark Act exhaustively lists the reasons for refusing to register a sign in the Trademark Register. Distinctive character is a fundamental and unchanging attribute of trademarks; it is the main reason for establishing trademarks in general. It allows not only to distinguish one natural or legal person from others but, more importantly, it allows to distinguish the products and services of one natural or legal person from others. The essential function of a trademark is to guarantee the identity of the origin of goods or services to the consumer by enabling him to distinguish goods or services from other goods or services that have a different origin without the possibility of confusion. 

In this particular case, the name of the product in question consisted of two English words. The Administrative Court found that the knowledge of the English language of the average Slovak consumer reached a basic level, which also included the verbal elements contained in the applicant’s sign, since they were frequently used words from the basic vocabulary and their meanings were obvious to a large part of the Slovak consumer public. The Administrative Court considered that this was not an unusual word combination that would have distinctive character for the claimed products in themselves, since they designated the area (products intended for bathtubs, bathrooms) to which they related. According to the Administrative Court, it was therefore a descriptive sign without distinctive character. 

The Cassation Court stated that signs which do not meet one of the basic conditions, namely the condition of distinctive character, which allows the consumer to identify the origin of goods or services and thus distinguish them from goods or services of another origin so that the consumer is later again able to make the same choice or to avoid the same choice, cannot be entered into the trademark register. The Cassation Court admits that although even a low degree of distinctive character is sufficient for a sign to be able to identify the origin of the goods or services for which protection is sought, trademarks without a sign or trademarks not having distinctive character give rise to a risk of misleading the consumer. Whether a sign has or does not have distinctive character must be assessed from several perspectives. It depends not only on the individual characteristics of the sign but also on the target market and the average consumer, especially their ability to distinguish goods or services. The distinctive character of a sign must therefore always be examined in relation to the impression of the average consumer and from several points of view – visual, phonetic, semantic, or by comparing types of goods or services or by comparing dominant elements of the trademark motif. The sign must be original to such an extent that the individualized goods can be clearly recognized from several perspectives – visual, phonetic, by comparison with others, or by identifying dominant elements of the motif. In the opinion of the Panel of the Cassation Court, the Industrial Property Office decided in the matter in accordance with the above-mentioned criteria, and therefore it identified with its conclusions, as well as with the conclusions of the Administrative Court, that the applied-for sign of the given product is without distinctive character and does not capture the purpose of the focus of the goods provided under it. 

The Supreme Administrative Court confirmed that the contested judgment of the Administrative Court was issued in accordance with the law and there was no reason to annul or amend it; therefore, it dismissed the cassation complaint as unfounded.  

The judgment was adopted unanimously by the Supreme Administrative Court; no further legal remedy is admissible. 

Decided by the Panel No. 4 of the Supreme Administrative Court consisting of: President of the Panel JUDr. Monika Valašiková, PhD., LL.M. (Judge-rapporteur), Judges prof. JUDr. PhDr. Peter Potásch, PhD. and JUDr. Vlastimil Pavlikovský.