Fack Ju Göthe – Public policy and accepted principles of morality

When examining a new trademark application, the authorities also assess whether the trademark may be in breach of public policy and the accepted principles of morality. The Benelux authorities are very liberal on this point. The European authorities are a lot stricter. Many applications are refused, relating to drugs, politics, religion and sex. As soon as the F-word is in it, you can assume that the trademark will be refused. But is this just? Should a trademark actually be refused on this ground?

In Germany, the comedy Fack Ju Göthe is a huge success. Reason for the producer to claim trademark rights for the title. But the application is refused because it is considered to be offensive for the writer Goethe (who died over 200 years ago). The producer appealed the refusal and the case is now before the European Court. The Advocate General has given an opinion on this (this is often followed).

He indicates that actually two separate assessments ought to be made. Public policy incites objective boundaries, such as violating laws, policies and official statements. The accepted principles of morality have a different angle, here the views of society are important.

The film is very popular in Germany and there has never been any controversy about the title. So there’s a fair chance that social norms are not violated and that the trademark is therefore not in breach of good moral. That would indicate a unjust assessment by the European authorities. Hopefully the Court adheres to this view.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?