CJEU sets aside finding that the sign “Fack Ju Göhte” is contrary to accepted principles of morality

Print this page 04-03-2020
IPPT20200227, CJEU, Fack Ju Gothe

Trade mark law - CJEU Press Release: “By today’s judgment, the Court sets aside the judgment of the General Court and annuls the decision of EUIPO, both of which are broadly vitiated by the same errors. EUIPO must therefore give a fresh decision on the application for registration made by Constantin Film.

 

According to the Court, the General Court and EUIPO failed to take sufficient account of the fact that a number of contextual factors consistently indicate that, despite the assimilation of the terms ‘Fack ju’ to the English phrase ‘Fuck you’, the title of the comedies in question was not perceived as morally unacceptable by the German-speaking public at large.

 

In fact, despite the high visibility accompanying such a success, the title of those comedies does not appear to have stirred up controversy among that audience. Furthermore, access by young people to those comedies, which take place in schools, had been authorised under that title. Moreover, the films received funds from various organisations and were used by the Goethe Institute  for educational purposes.

 

The Court also observes that the perception of the English phrase ‘Fuck you ‘ by the German-speaking public is not necessarily the same as the perception thereof by the English-speaking public, even if it is well known to the German-speaking public and the latter knows its meaning. Sensitivity in the mother tongue may in fact be greater than in a foreign language. For the same reason, the German-speaking public also does not necessarily perceive the English phrase in the same way as it would perceive the German translation of it. Furthermore, the title of the comedies at issue, and therefore the mark applied for, does not consist of that English phrase as such but of its phonetic transcription in German, accompanied by the element ‘Göhte’.

 

Under these circumstances, and in view of the fact that no concrete evidence has been put forward plausibly to explain why the German-speaking public at large will perceive the word sign ‘Fack Ju Göhte’ as going against the fundamental moral values and standards of society when it is used as a trade mark, even though that same public does not appear to have considered the title of those films to be contrary to accepted principles of morality, the Court holds that EUIPO has failed to demonstrate to the requisite legal standard that the mark applied for cannot be registered."

 

Full press release here.

 

IPPT20200227, CJEU, Fack Ju Gothe

 

C-240/18 P - ECLI:EU:C:2020:118