On December 4, 2025, the Federal Administrative Court, in its ruling B-447/2025, upheld the refusal to register a position mark affixed to the side of a sneaker, as shown below:

According to the Court, the graphic element in question was merely a decorative element commonly used in the industry and therefore lacked inherent distinctiveness.

I find this decision questionable for two main reasons:

1. Decorative element and distinctive character: a conceptual confusion

Swiss case law tends to consider that a decorative element is, in principle, incompatible with the recognition of inherent distinctiveness.

In my view, this reasoning is flawed.

In trademark law, the decisive question is not what the creator’s intention was, but solely how the relevant circles perceive the element. The fact that an element was designed as decorative by its creator does not therefore preclude it from being perceived by the public as an indicator of the origin of the product in question.

One does not exclude the other.

However, as soon as an element “characterizes” a product and allows consumers to identify it among others, it fulfills the essential function of a trademark.

Systematically requiring a derivative distinctive character whenever an element is described as decorative is simply wrong.

2. The sneaker market: a sector where detail makes the brand

In the field of sportswear and sneakers, consumers pay particular attention to the graphic elements on the sides.

These elements allow for immediate identification of the product, differentiate models in a highly competitive environment, and often constitute the main visual reference point that will influence the consumer’s purchasing decision.

It is therefore artificial to claim that such an element would necessarily be perceived as purely decorative and would “therefore” not be originally distinctive.

The Federal Administrative Court had adopted a more nuanced and correct approach in the Adidas ruling (B-86/2012), recognizing that a graphic element affixed to a shoe could fulfill a distinctive function.

3. Conclusion

The real question is not whether an element was designed by its creator to be decorative.

The only relevant question is: does the relevant public perceive this element as an indicator of origin?

This is logically the case as soon as, in the mind of the public, this element characterizes a product and allows it to be distinguished in trade. As such, such an element should be eligible for protection under trademark law.

Ignoring this reality amounts to adopting a false approach to what should be considered inherently distinctive.