The European Union and immoral brands

We had already discussed the cancellation of the brand LA MAFIA SE SIENTA A LA MESA last March by the European Union Court of Justice, which found that the mark was contrary to public policy. Cases of trademarks being rejected on the grounds of immorality are quite rare and do not always make much sense. Indeed, in 2018, the CURVE-O trademark was rejected for vulgarity, even though the FUCKING HELL trademark could be registered. A look back at these two cases and EUIPO's practice in dealing with immoral trademarks.

EUIPO's assessment of immorality

The European Union Trade Mark Office may refuse to register a trade mark if it is contrary to public policy and morality. This absolute ground for refusal is provided for in Article 7(1) of the Community Trade Mark Regulation. It is in application of this article that the EUIPO refused the registration of nearly 40 trademarks in 2017. It should also be noted that the Office is becoming increasingly demanding in terms of immorality. In 2009, less than 10 trademarks were rejected as immoral.

Thus, current applicants must be careful to ensure that their trademark complies with public policy and morality, on pain of having it cancelled or rejected.

The mark CURVE-O rejected on the ground of vulgarity

At the end of 2016, EUIPO receives a European application for a three-dimensional mark representing a curved comb. The comb reads "CURVE-O", the name of the trademark. The homonymous company, based in Belgium, specialises in hairdressing products (brushes, combs, hair accessories).

The EUIPO rejected the trademark application on the grounds that the word CURVE means "whore" in Romanian and that the trademark was therefore vulgar. The Office did not take into account the fact that this term is not offensive in other European languages. Furthermore, in view of the shape of the comb presented in the trade mark application, it was clear that it was the English meaning ("curve") that was intended by the trade mark application.

The holder therefore appealed to the EUIPO, which was rejected in March 2018.

FUCKING HELL registered for German beers

It took more than 3 years to obtain the registration certificate for the FUCKING HELL trademark. The EUIPO rejected the trademark during its examination. The cause of the rejection appears obvious, even more so than in thebrand case FACK JU GÖTHE. But this time, on appeal, the applicants presented arguments that convinced the judges.

The trademark FUCKING HELL designating in particular beerthe holders argued that it originated from the Fucking villagein Austria.

As for the term HELL, it would not refer here to hell, but rather to the type of beer ("hell" was a lager in German-speaking countries). The brand name would therefore mean "the lager from Fucking, Austria". The judges accepted this argument and therefore concluded that the trademark was not immoral.

For example, it is difficult today to predict which brands are immoral. If you choose a name that is a bit "borderline", you should therefore include arguments justifying the origin of the name, even if they seem a bit far-fetched. Finally, it should be remembered that the control of the morality of the trademark is more demanding at the European level (which can extend the control to all the languages of the European Union) than at the national level. In any case, do not hesitate to contact our team for any problems regarding your trademark registration.