cabin window
rejected as a
figurative mark.
cabin window
rejected as a
figurative mark.
of
A wooden window with heart-shaped shutters, red geraniums, and firewood. Is a photo like this suitable as a figurative mark for building materials, windows, and tents? The Federal Patent Court largely rejected this and granted protection only for a few, rather unrelated goods.
A Window Straight Out of a Picture Book
On August 6, 2018, an applicant filed an application with the German Patent and Trademark Office (DPMA) for a figurative mark containing no text whatsoever. The mark depicts a photorealistic view of a window in a dark wooden facade. It features white curtains, shutters with cut-out hearts, three pots of red geraniums, and two stacks of firewood. Protection was sought, among other things, for building materials, windows, doors, and structures made of wood and metal, as well as for tents, tarps, awnings, ropes, and textile fibers.
The DPMA rejected the application in its entirety on May 3, 2022. The image lacked any distinctiveness—that is, the ability to associate goods with a specific company. The viewer would see in it only a well-composed photograph of a historic wooden house.
The Applicant’s Arguments
The applicant considered the motif to be memorable. The contrast of the red flowers against the dark wood and the shape of the curtain drew the eye to the geraniums. Furthermore, the composition did not appear natural but rather like a deliberately staged play on Alpine clichés. In any case, the image had nothing to do with steel beams or fibers.
Federal Patent Court Largely Upholds Rejection
In its decision dated September 30, 2026—Case No. 28 W (pat) 538/22— the Federal Patent Court largely dismissed the appeal. The applicant was successful only with regard to unprocessed metal materials, raw textile fibers, ventilation cloths, container liners, upholstery and filling materials, and animal hair. In this respect, the court overturned the DPMA’s decision.
Why doesn’t a photo like this constitute an indication of origin?
Under trademark law, the only thing that matters is how experts and end consumers understand a mark. According to the court, they would perceive the image as an example of a possible use, as a product illustration, or as rustic decoration. Similar photos are frequently found as examples of alpine huts and as decorative motifs. In the case of wooden windows and shutters, the image simply shows the product itself.
The same applies to metal goods. There are metal shutters and wall panels with a wood-grain finish, and hinges and fittings are also visible in the image. Tents, tarps, and awnings are printed with such designs. In this context, it is sufficient if the obstacle for individual goods falls under a broad umbrella term.
The court did not accept the argument regarding the staging. Heart-shaped shutters, geraniums, and stacks of wood are not clichés, but rather everyday elements of Alpine facades.
The mere combination of such typical elements in an illustration does not lead the relevant public to perceive the mark applied for as an indication of origin with respect to the goods claimed.
The situation was different for the goods for which the court granted protection. According to the court’s research, such sample images are uncommon for raw fibers or unprocessed metal. Furthermore, ventilation cloths are not typically printed with decorative designs.
Conclusion
Realistic photos of everyday subjects face challenges as trademarks when they are intended to correspond to the goods themselves. Nearly eight years after filing the application, the applicant was granted protection for goods to which the image has no direct connection. Whether this partial success makes economic sense remains questionable.
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