The title of a comedic film does not appear to have been perceived as morally unacceptable by the German-speaking public, and therefore the EUIPO is asked to issue a fresh decision on the application made by Constantin Film for registration of the sign Fack Ju Göhte as an EU trademark. This is what has been established by the Court of Justice of the European Union in its judgement in case C-240/18 P.
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On February 27, 2020, the Court of Justice of the European Union (the “Court”) delivered its judgement in case C-240/18 P[1] (“Judgement”), concerning an appeal brought by Constantin Film Produktion GmbH, a company established in Munich (alternatively, “Appellant” and “Constantin Film”), against the European Union Intellectual Property Office (“EUIPO”).
Back in 2015, Constantin Film submitted an application to the EUIPO for registration of a European trademark, consisting of the verbatim expression “Fack Ju Göhte” (“Sign”), which constitutes the title of a very successful film trilogy in Germany and Austria, produced and distributed by the Appellant since 2013. The EUIPO refused said application on the grounds that the Sign infringes upon accepted principles of morality: the German-speaking public perceives the Sign as similar to the vulgar and offensive English phrase “Fack you”, and the additional word “Göhte” does not substantially alter the perception of the central expression of the Sign.
After the General Court of the European Union (“General Court”) in turn dismissed the action by the Appellant to challenge the abovementioned refusal by the EUIPO, Constantin Film decided to further appeal the decision of the General Court before the Court.
In a nutshell, the Court set aside the judgement of the General Court and annulled the refusal decision by the EUIPO due to the fact that both of them failed to provide the necessary evidence that the German-speaking public would perceive the expression “Fack Ju Göhte” as contrary to common standards of morality. In this regard, the concept of “morality” must be interpreted in light of the usual meaning and context in which it is generally used. Furthermore, according to the Court “Those values and norms [constituting the concept of morality], which are likely to change over time and vary in space, should be determined according to the social consensus prevailing in that society at the time of the assessment”[2] (emphasis added).
Both the EUIPO and the General Court failed to take into consideration a number of “contextual elements capable of shedding light on how the relevant public perceives that mark”[3] (emphasis added): among other circumstances, the Court mentioned that the film whose title appears on the Sign has received funds from various organizations, and that young people’s access to the film has been authorized.
In conclusion, the EUIPO is now asked to issue a fresh decision on the application for trademark registration submitted by Constantin Film.
[1]Judgement of the European Court of Justice on appeal brought under Article 56 of the Statute of the Court of Justice of the European Union on April 4, 2018 by Constantin Film Produktion GmbH against the European Union Intellectual Property Office – accessible here.
[2] European Court of Justice, judgement cited, p. 4.
[3] European Court of Justice, judgement cited, p. 5.
