CJEU overturns EUIPO’s ‘Fack Ju Göhte’ refusal
The EU’s top court has told the European Union Intellectual Property Office (EUIPO) that it cannot block the registration of a ‘Fack Ju Göhte’ trademark for being morally unacceptable.
The ruling from the Court of Justice of the European Union (CJEU), issued today, February 27, follows the opinion of an advocate general (AG) last July, and means the EUIPO must now issue a new decision in line with the court’s judgment.
Eva Saarmann, of Hofstetter, Schurack & Partner, who represented Constantin Film Produktion, welcomed the CJEU’s ruling.
Saarmann told WIPR that the judgment “shows that the perception of the public is not determined in a purely abstract way, but by taking into account factual circumstances, in particular the social context of a sign”.
Constantin Film Produktion, which produced the 2013 German comedy film “Fack Ju Göhte”, applied to register the phrase as a European trademark in 2015.
The EUIPO denied the application, finding that it was in “bad taste” and “vulgar”. In an appeal to the EU General Court, Constantin argued that phrases such as 'fuck' and 'fuck you' could no longer be considered shocking in view of how language has evolved.
The EUIPO, on the other hand, considered this argument “inadmissible since it concerns a finding of fact”.
The General Court sided with the EUIPO, prompting an appeal to the CJEU.
In today’s judgment, the CJEU said that the film’s success in Germany (and that of its 2017 sequel) suggested that the title was not perceived by the German public as being morally unacceptable, noting that the films had been used by the Goethe Institute for educational purposes.
The court said “no concrete evidence” had been put forward to support the finding that the public would consider the phrase morally unacceptable when used as a trademark.
The CJEU annulled the EUIPO’s refusal of the mark, meaning it must now review the case in light of the court’s findings.
Saarmann added: “The judgment will have general significance beyond the individual case, especially for film companies and publishers, as it will give them greater legal certainty when applying for registration of work titles as trademarks.”
The EUIPO must also pay the costs incurred by Constantin during the legal proceedings.
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