{"id":1060,"date":"2023-03-12T12:10:28","date_gmt":"2023-03-12T10:10:28","guid":{"rendered":"https:\/\/savoidakis.eu\/?p=1060"},"modified":"2023-03-16T12:55:44","modified_gmt":"2023-03-16T10:55:44","slug":"trademarks-public-policy-and-principles-of-morality","status":"publish","type":"post","link":"https:\/\/savoidakis.eu\/?p=1060","title":{"rendered":"Trademarks, Public Policy and Principles of Morality"},"content":{"rendered":"

MUNIA is a registered European Union Trademark (EUTM: 016305369<\/a>) owned by Bodega\u00a0Vi\u00f1aGuare\u00f1a<\/span>, a Spanish winemaker producing high quality wines near Salamanca. As of today, their trademark\u00a0enjoys protection across 27 member-states of the European Union, although their wines have not reached Greek retail stores.<\/p>\n

But can a sign with an objectionable meaning be registered as a European Union Trademark (EUTM) ?<\/p>\n

Not always. Article 7(1)(f) of Regulation 2017\/1001 (EU) (EUTMR<\/a>) provides for the refusal of trademark applications and the invalidation of registrations already effected, where trademarks are \u201ccontrary to public policy or to accepted principles of morality<\/em>\u201d.<\/p>\n

The same provision as in the EUTMR is reflected in Article 4(1)(f) of the Trade Mark Directive, which has been transposed verbatim in Greek law, by means of Article 4 of Law 4679\/2020.<\/p>\n

The wording of the above refusal ground is very broad and could create legal tensions, as the EU trademark system is\u00a0unitary<\/em>\u00a0in character, whereas both moral principles and the requirements of public policy may vary from country to country and evolve over time.<\/p>\n

As a result, an objection against an EU trademark application in any member state can defeat the entire application, as under Article 7(2) ETMR an application can be rejected\u00a0even if the grounds for refusal exist only in part of the <\/strong>European Union<\/strong>.<\/p>\n

For the sake of uniformity, EUIPO Board of Appeals published a Case-law Research Report<\/a>\u00a0in October 2021 that establishes general principles on the assessment of applications.<\/p>\n

Some of the most notable examples of the assessed signs over the last years, as summarised in the above report, are the following:<\/p>\n

In SULA<\/strong>, (vulgar for \u2018penis\u2019 in Romanian), the Board rejected an application confirming that the goods (milk and derivates) applied for did not avoid, but in certain cases even enhanced, the link with such a sexual connotation.<\/p>\n

Similarly, in\u00a0Kona<\/strong>, which is\u00a0a subcompact crossover SUV produced by the South Korean manufacturer Hyundai<\/strong>. Differently spelt, the word \u2018cona\u2019 is vulgar for \u2018vagina\u2019 in Portuguese, and in this respect the Board considered the sign to be an offensive vulgar expression for the Portuguese public, notwithstanding that the goods applied for were \u2018automobiles\u2019.<\/p>\n

By contrast, in REVA The electriCity Car<\/strong>, EUIPO had found back in 2006 that in the context of electric cars and in combination with the English words \u2018The ElectriCity Car\u2019, the Finnish public will not consider the expression \u2018reva\u2019 (vulgar for \u2018vagina\u2019 in Finnish) to be intentionally abusive, but as an unfortunate choice of brand of foreign origin. EUIPO held in that case that \u201cf<\/em>rom time to time, the general public encounters words on imported goods and services which, if used conversationally in its own language, might be found shocking. Nevertheless, they are understood for what they are, namely as neutral foreign words carrying an unfortunate meaning in the native tongue<\/em>\u201d<\/em>.<\/em><\/p>\n

The Board also allowed the registration of the trademark CUR<\/strong> (Romanian slang for \u2018butt\u2019) stating that the mark would not be found to be offensive in relation to IT-related specialised services, but rather as \u201ca slightly embarrassing or even humorous example of how English- speaking undertakings can occasionally commit a linguistic \u2018faux pas\u2019 when selling their branded products globally<\/em>\u201d<\/em>. Moreover, the fact that the word did not address anybody in particular was also considered decisive in their assessment.<\/p>\n

That was not the case in PAKI<\/strong>, however, where the General Court confirmed the Board\u2019s assessment that, given the racist and degrading\u00a0 meaning of the word for people originating from Pakistan and residing in the United Kingdom, the sign had to be refused registration irrespective of the goods and services applied for.<\/p>\n

But would the above rejections constitute a violation of the respective applicant\u2019s freedom of expression<\/strong>, enshrined in Article 10 ECHR and Article 11 of the Charter of Fundamental Rights of the European Union, or even a violation of their freedom to conduct a business<\/strong> pursuant to Article 16 of the Charter of Fundamental Rights of the European Union?<\/p>\n

Under settled case-law, the refusal of a trademark application does not limit the applicant\u2019s freedom of expression. In fact, the General Court has pointed out that it is not necessary to register a sign for it to be used for commercial purposes <\/strong>and that the goal of Article 7(1)(f) EUTMR is not to filter out signs whose use in commerce must at all cost be prevented.<\/p>\n

In that sense, when EUIPO declared the trademark \u201cBOY LONDON<\/a>\u201d invalid on the grounds that it evoked Nazi symbolism and was, therefore, contrary to the accepted principles of morality, it reiterated that the application of Article 7(1)(f) EUTMR is not a constraint to anybody\u2019s freedom of expression, because the applicant is not prevented from using the sign but is simply refused its registration.<\/p>\n","protected":false},"excerpt":{"rendered":"

MUNIA is a registered European Union Trademark (EUTM: 016305369) owned by Bodega\u00a0Vi\u00f1aGuare\u00f1a, a Spanish winemaker producing high quality wines near Salamanca. As of today, their trademark\u00a0enjoys protection across 27 member-states of the European Union, although their wines have not reached Greek retail stores. But can a sign with an objectionable meaning be registered as a … Continue reading “Trademarks, Public Policy and Principles of Morality”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":1061,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[5],"tags":[47,46],"class_list":["post-1060","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","tag-european-union","tag-trademark"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/savoidakis.eu\/wp-content\/uploads\/2023\/03\/munia_crianza.jpg?fit=600%2C600&ssl=1","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p8gfA0-h6","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/posts\/1060","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1060"}],"version-history":[{"count":9,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/posts\/1060\/revisions"}],"predecessor-version":[{"id":1073,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/posts\/1060\/revisions\/1073"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=\/wp\/v2\/media\/1061"}],"wp:attachment":[{"href":"https:\/\/savoidakis.eu\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1060"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1060"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/savoidakis.eu\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1060"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}