„Fack Ju Göhte” – A film, but not a trade mark

On 24 January 2018, the European General Court („EGC“) dismissed an appeal filed by Constantin Film Produktion GmbH (Constantin Film) regarding the registration of the European Union trade mark (EUTM) „Fack Ju Göhte“ and therefore confirmed the opinion of the previous instances (Case T-69/17). Constantin Film can appeal this decision to the Court of Justice of the European Union („CJEU“) within two months.

 
In 2015, Constantin Film filed for registration of the designation „Fack Ju Göhte“ as a EUTM for a large number of goods and services (perfumes, jewellery, stationery, clothing, toys, food, telecommunication and education services etc.). The Examination Division and the Fifth Board of Appeal of the European Intellectual Property Office („EUIPO“) rejected this application for registration in accordance with Article 7(1)(f) of the European Union Trade Mark Regulation (EUTMR). According to this, trade marks which are contrary to public policy or to accepted principles of morality shall not be registered.

 
The EUIPO was of the opinion that the relevant public, namely German-speaking general consumers in the European Union (i.e. those in Germany and Austria), would perceive the component „fack ju“ as being identical to the English „fuck you”. Even if consumers did not attach any sexual meaning to this expression, it did, however, constitute an insult, which was not just distasteful, but also offensive and vulgar. The additional element „Göhte”, which posthumously insulted a highly regarded writer like Johann Wolfgang von Goethe in a derogatory and vulgar manner, further spelled incorrectly, was not able to distract from the insult „fack ju”, which was offensive and contrary to accepted principles of morality. The reference to Johann Wolfgang von Goethe could possibly open another level of a violation of accepted principles of morality. This was all the more the case as the goods concerned are everyday objects of a harmless and inoffensive nature. Consumers therefore did not have to expect or be prepared to be confronted with such obscenity when purchasing them. The same applied to the services in the area of telecommunications and in particular education, which serve the intellectual and moral instruction of, among others, children and teenagers.

 
The EGC agreed with the EUIPO and confirmed that accepted principles of morality were being violated. The fact that the film „Fack Ju Göhte” had been seen by millions of people since its release did not mean that the relevant public was not shocked by the trade mark applied for. The Court rejected Constantin Film’s argument that this was in its entirety an original and pithy sign that obviously had satirical, humorous and tongue-in-cheek content. The special spelling alone, it said, was not capable of giving the sign such content. It had not been proven that the relevant public would recognise the title of a successful film in the sign and see this as a joke relating to students’ frustration in relation to school. Even if teenagers, for example, found such extremely coarse language acceptable, it was the criteria of a reasonable person with an average sensitivity and tolerance threshold which were to be used as basis. Ultimately, also the comparison drawn by Constantin Film with the accepted EUTM „Die Wanderhure” („The Whore“) was unsuccessful. Unlike in this case, „Die Wanderhure” was descriptive of the content of the film with the same name and was also much less vulgar than the sign filed for registration here.

 
In sum, this is a decision which can certainly be debated, at least from a moral perspective. Thus, the objection based on a violation of accepted principles of morality concerns subjective values, which can differ from person to person and from country to country. With this in mind, the German Patent and Trademark Office (DPMA) for example registered the sign „LECK MICH, SCHILLER” („KISS MY ASS, SCHILLER“) (also of Constantin Film) as a German trade mark for various goods and services without objection. The judgment of the EGC in this case, however, is in line with the general practice of the EUIPO rejecting trade marks with „fuck” (or similar terms) as non-registrable.