Fack Ju Göhte…and principles of morality

In 2015, following a great success of the comedy “Fack Ju Göhte”, the German production company Constantin Film decided to apply to EUIPO for registration of the word sign "Fack Ju Göhte" as an EU trademark designating various goods and services, in particular cosmetics, jewelry, office items, travel and sporting goods, games, foodstuffs, and beverages.

EUIPO refused to register the sign as a trademark, on the ground that it infringes accepted principles of morality. Constantin Film unsuccessfully challenged that refusal before the General Court which, in 2018, dismissed the action. However, Constantin Film did not give up and filed the appeal before the Court of Justice.

Court of Justice now ruled that EUIPO must decide again on the application made by Constantin Film.

According to the Court, EUIPO and the General Court failed to take sufficient account of the fact that a number of contextual factors indicate that, despite the assimilation of the terms “Fack Ju Göhte” to the English phrase “Fuck you”, the title of the comedies in question was not perceived as morally unacceptable by the German-speaking public (being the relevant public for the products). In fact, the title of those comedies does not appear to have stirred up controversy among that audience. Access by young people to those comedies had been authorised under that title. Moreover, the films received funds from various organisations and were even used by the Goethe Institute for educational purposes.

The Court concluded that EUIPO and the General Court have failed to explain why the German-speaking public would perceive the word sign "Fack Ju Göhte" as going against the fundamental moral values and standards of society when it is used as a trademark, even though that same public does not appear to have considered the title of those films to be contrary to accepted principles of morality.

What is moral and what is not? It seems that in the world of trademarks this question will be answered by the relevant public rather than EUIPO.