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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PURE - MENTOS

MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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