Freedom Of Expression Counts In Trademark Law

Can "Fack Ju Göhte," the title of one of the most successful German comedy movies in recent times, be registered as a European mark? How should the morality absolute grounds for refusal be interpreted, and does freedom of expression play a role in EU trademark law? Following the recent Court of Justice of the European Union's (CJEU) decision in Constantin Film (C-240/18), we may now have an answer.

The absolute grounds for refusal under article 7(1)(f) EUTMR denies registration of "trademarks which are contrary to public policy or to accepted principles of morality." Back in 2015, the EUIPO denied registration of the sign "Fack Ju Göhte," which was applied mostly for merchandising products, as it was deemed contrary to the "accepted principles of morality." The EUIPO's decision was subsequently upheld by the EUIPO Fifth Board of Appeal and the General Court (T-69/17).