Is your trademark immoral?

Is your trademark immoral?

Most trademark authorities will refuse a trademark application if it is deemed to be immoral (in the UK if it’s deemed contrary to public morality). But surely this is a subjective test?

In the US trademark system  if a : substantial composite of the general public would perceive the trademark, in context, to have a vulgar meaning, then the mark as a whole consists of scandalous matter and is not registerable.

In the EU, the test under Article 7(1)(f) of the Community Trademark Regulation (207/2009) is whether the trademark is contrary to public policy or to accepted principles of morality.

This is what OHIM had to figure out when considering the case for the EU trademark application: DIE WANDERHURE

In German the word HURE is a coarse term used to refer to a prostitute. Thus it followed that the mark as a whole embodies a vulgar and indecent expression and an offensive swearword, and must be rejected.

The applicants appealed. A significant amount of the evidence consisted of media coverage which reported on the success of the novel and the film promoted under the term “DIE WANDERHURE”. The applicants argued that it is this fact that stops the trademark from being viewed as “contrary to public policy or to accepted principles of morality“. In addition, they referred to the German Prostitution Law of December 20, 2001 and an Austrian court decision dating from 2012 according to which the term “prostitute”, including the activity related thereto, is no longer considered immoral in the legal sense.

The evidnce submitted describes the term referring to a young female who offers and provides her services on the way to and at the Council of Constance to the relevant public, which took place between 1414 and 1418. The reader of the novel and film is thus faced with the proposition that the traveling woman pursues a private profession, or belongs to a specialised group of female service providers.

The appeal was successful for a number of other reasons too and the trademark was allowed to be registered. It is worth taking note if you think your trademark may cause offence!

CTM

EU Trademark

UK Trademark