„Everyone hears only what he understands“- EUIPO should not only hear what it understands
Advocate General’s Opinion in CaseC-240/18 P „Fack Ju Göhte“ (2nd July 2019)
According to Advocate General Bobek, the EUIPO and the General Court erred in considering the European Union Trademark „Fack Ju Göhte“ – title of a successful German film – as being contrary to ‘accepted principles of morality’.
Even though the protection of freedom of expression is not the primary goal of trademarks (the aim of which is essentially to guarantee to consumers the origin of the goods or services) the Advocate General observes that freedom of expression clearly applies in the field of trademarks. According to the Advocate General, the EUIPO has a role to play in the protection of public policy and accepted principles of morality. The concepts of „public policy“ and „accepted principles of morality“, which the regulation refers to, have to be considered in the concrete social context, i.e. with regard to the targeted public and the relevant moment in time.
The EUIPO should thus not ignore factual evidence that either confirms or possibly creates doubt on the EUIPO’s own views on what does or does not conform to accepted principles of morality within a given society at a given time.
According to Advocate Gernal Bobek, the EUIPO and the General Court failed in applying the corresponding standards when they did not take into consideration or chose to ignore the success of the film in Germany, the fact that the film was not prohibited for minors and also the fact that the title had not even been a controversial issue, while a similarly provocative film title of the same applicant had previously been accepted by the EUIPO.
We will keep you informed on the follow-up as soon as the decision has been ruled by the Court of Justice of the European Union.
Full text of the Advocate General’s opinion available here.