The Fack Ju Göhte trademark: too vulgar to be registered
« Fack Ju Göhte "is the original title of a German comedy, which was a great success across the Rhine. On the 3rdth flap extended in 2017. Despite this notoriety, the EUIPO rejected the registration of the trademark on the grounds that it was contrary to public policy and morality. This ground is rarely cited by trademark offices. Let us return to this refusal, which was recently confirmed by the European Union Court of First Instance (CFI).
If the French title did not make any waves (« A teacher like no other »), the original title had already made a lot of noise. « Fack Ju Göthe "had nevertheless opted for a vague, English inspired formulation" fuck you "and that could be translated as "Goethe, fuck you." With this shock formula, rather critical of the limited vocabulary of young people, unable to write the name of the classic German author, the director wanted above all to create a comic effect and make people laugh. The European judges didn't even smile at the pun.
Fack Ju Göthe trade mark application rejected by EUIPO for vulgarity
In 2015, the producer of the hit comedy files a European trademark application for various products and services. These include selling games, clothing and accessories under the name Fack Ju Götheas is customary in the film industry.
EUIPO examiner refused registration of the mark Fack Ju GötheThe Commission considers that this was contrary to public policy. The producer therefore appealed, stressing the humorous nature of the mark. It also argues that outside Germany the mark is not understood and therefore is not perceived as vulgar.
The Board of Appeal of EUIPO confirmed the examiner's refusal. It considered that the relevant German-speaking public, including children, could perceive the pronunciation of "fack ju" as identical to that of "fuck you" in English. This formulation was therefore objectively vulgar. The Chamber further considers that the voluntary writing of the name of the writer Goethe with a typo was an insult to the author.
The producer was of the opinion that the intended audience understood the joke, and therefore could not be shocked. He therefore appealed against this decision in order to register the mark. Fack Ju Göthe.
For the TEU, the expression Fack Ju Göthe is in bad taste.
For the producer, the EUIPO decision misapplied the Article 7(1)(b) of the Community Trade Mark Regulation. According to him, the refusal to register a trade mark on grounds of infringement of public policy and morality must be in the general interest of the public.
In doing so, the court will have to take into account the perception of the mark by the relevant public. For judges, the relevant public goes beyond the potential buyer of the goods. Indeed, other people, unfamiliar with the film Fack Ju Göthe...could see the brand in their daily lives. For TEU, the association between the writer's name and the common expression "fuck you" is shocking.
In addition, the court considers that the relevant public is German-speaking.
The discrepancy between "fuck" and "fack" taken into account by the judges
The judges also noted that the word "fuck" had evolved, losing its sexual character. The term is also used to express anger or contempt for someone. However, the term remains inherently vulgar. And the addition of the name Göthe shows who is the recipient of the insult.
The producer had also pointed out the difference in writing between "fuck you" and "fack ju". For him, this discrepancy made the brand distinctive and proved the irony of the expression. The Court rejected this argument: for the judges, it was merely a phonetic transcription of English into German. The discrepancy in the handwriting is not sufficient to prove the satyric and ironic nature of the title.
This analysis is interesting. In general, European courts consider that Germans (like the French) do not have a good knowledge of English. To note the evolution of the language is therefore quite unusual for such a decision.
The intrinsic vulgarity of the trademark prevents its protection
After a thorough analysis, the judges ruled against the registration of the trademark. They found the title to be "not only in bad taste, but also an offensive and vulgar insult. It may shock consumers who discover it during normal shopping, for example. So irony cannot save the brand.
It is regrettable that the judges did not consider the fact that Fack Ju Göthe has been seen by millions of people. The third part, released in 2017, was the most successful German film at the box office.
Notoriety is not enough to have a good brand!