Back in 2015 Constantin Film AG, the production company of the German movie „Fack ju Göhte“, filed an European Union trademark application (“EUTM”) for its movie title „Fack ju Göhte“ with the European Union Intellectual Property Office (“EUIPO”). The EUTM application was refused by the EUIPO based on an alleged infringement of public policy and common decency. On top of that, EUIPO was of the opinion that the title of the movie is an offensive insult that would damage the German highly respected writer Johann Wolfgang von Goethe posthumously. Constantin Film’s appeal against this decision was also not successful, so that they now brought that case before the General Court of the European Union.
The Facts: Protection of Word Trademarks
Since Article 7(1)(f) of the European Union trademark regulation (“EUTMR”) prohibits the registration of trademarks which infringe public policy or morality, the core key was whether the General Court of the European Union classifies the movie title as immoral in the sense of Article 7(1)(f) EUTMR. The purpose of Art. 7 EUTMR is in particular to ensure the public interest that adolescents will be protected from being confronted with words that are offensive or disturbing. Therefore the question whether or not immorality is given depends on the relevant public and that is the average consumer who the EUTM is meant to address.
Trademark registrations are prohibited for all signs that are degrading, vicious or racial. Since “Fack ju” can be understood as a misspelling of the expression “Fuck you”, an offensive expression that insults the dislike for another person which is usually used with the intention to hurt or degrade someone, examiners of the EUIPO saw the movie title and EUTM-application as an offensive insult of the German writer Goethe. In this respect the word „Fuck“ had already been confirmed as a violation of European trademark law in several other judgments. The EUIPO rejected in the past EUTM- applications like “fucking freezing!” and “FUCK CANCER”.
Constantin Film contradicted that the decision of whether the movie title actually conflicts with good morals or not has to be determined as a whole and not only by analyzing one part of it. They argue that the expression “Fuck you” has neither a sexual meaning nor can be considered as insulting in the present case, but is used as a synonym for school frustration in context with the word “Göhte”. It further argued that this understanding is confirmed by the cheerful and entertaining character of the movie which in no way refers to the writer in a disrespectful way.
As expected, the General Court of the European Union denied protection to the expression “Fack Ju Göhte” as a word trademark on 24 January 2018 and once again confirmed that immoral and degrading expressions cannot be protected by European trademark law.
The Court stated that neither the special spelling nor the intended irony can mitigate vulgarity. Moreover, a breach of public order or morality must be determined by the trademark itself and in connection with the goods and services for which it is to be registered. The goods and services in question are those of daily use, e.g. games and clothes so that not only people who watched the movie, but rather any person shall be taken as reference, and it cannot be guaranteed that these people in general would recognize the trademark as a title of a successful film and as a joke. As a result, the average consumer will rather see the sign as the commonly used English expression “fuck you”, which is immoral and therefore cannot be registered as a trademark pursuant to Art. 7(1)(f) EUTMR.