German film name too vulgar to be trademarked
A German film company’s attempt to register comedy film title ‘Fack Ju Göhte’ as an EU trademark (EUTM) has been quashed due to its vulgar and offensive connotations.
The EU General Court delivered its judgment today, January 24.
In April 2015 German film company Constantin Film Produktion applied to register the mark ‘Fack Ju Göhte’, the title of a German comedy film it produced, with the European Union Intellectual Property Office (EUIPO).
Filed under EUTM number 013,971,163, the application sought to cover international classes 3, 9, 14, 16, 18, 21, 25, 28, 30, 32, 33, 38, and 41. These include laundry accessories, data carriers, jewellery, printed content, luggage, crockery, clothing, games, food groups, drink groups, alcoholic beverages, telecommunication services, and educational activities.
The application was refused and, in November 2015, Constantin filed an appeal with the EUIPO. The Fifth Board of Appeal dismissed the matter in December 2016.
Given the multitude of classes covered by the application, the board found that the products and services covered by it are aimed towards general consumers including, in some cases, children and young people.
It said that as the pronunciation of the word mark resembled that of the English expression ‘fuck you’, it would be inappropriate to allow a mark with sexual connotations to be used in such a way.
Additionally, even if no sexual connotations were made, the expression itself is shocking, vulgar, and in bad taste. The board considered the word ‘göhte’ as being intended to refer to writer Johann Wolfgang von Goethe, but found that he should not be posthumously insulted in such a degrading manner. The incorrect spelling of his name does not diminish the offence of the phrase.
Constantin appealed against the decision of the board, arguing that the mark applied for is not vulgar or offensive, either in part or as a whole.
It claimed the board misinterpreted the sign and therefore erred in its ruling, as the distinct word elements of ‘fack’ and ‘ju’ become, when combined, a “distinctive composite” mark which the relevant public will perceive as “playful”. Constantin also argued that the mark falls within teenagers’ language.
The General Court concurred with the board, holding that the misspelling of the words does not make the mark satirical or playful. It maintained that the EU trademark regulation seeks to prevent the registration of marks that would be “contrary to public order or morality when used in the union”.
Furthermore, “the fact that the film Fack Ju Göhte was seen by several million people during its cinematographic output does not mean that the relevant public will not be shocked by the sign applied for”, even though part of the relevant public consider the “most offensive remarks to be acceptable”, the court added.
Therefore the court dismissed the complaint, ruling that the board was correct to find that the mark applied for is “inherently vulgar” and should be refused. Constantin has been ordered to pay the costs.
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