The applicant sought to register a figurative trade mark for ‘clothing, footwear, headgear' in Class 25, ‘beers and aerated waters and other non-alcoholic drinks' in Class 32 and ‘alcoholic beverages (except beers)' in Class 33.
The examiner rejected the application the sign used sexuality in order to express contempt and violent anger. The village Fucking in Austria , to which the appellants had referred, had only 93 inhabitants, and no-one knew of it. Furthermore, the right of freedom of expression had to have limits in the case of upsetting, accusatory or derogatory signs
The Board held that in Christian terms, ‘hell' is the place of highest torment. It is a place of damnation. In common parlance ‘hell' is a synonym for something negative and causing torment. If the first word element stands for ‘damned', then the sign designates only that which according to popular belief happens in hell.
Under Article 7(1)(f) CTMR signs may not be registered if they are disparaging, discriminatory, blasphemous or derogatory, incite criminal offences or insurrection.
However, the word combination claimed contains no semantic indication that could refer to a certain person or group of persons. Nor does it incite a particular act. It cannot even be understood as an instruction that the reader should go to hell. The meaning assumed by the examiner is, overall, an interjection used to express a deprecation, but it does not indicate against whom the deprecation is directed. Nor can it be considered as reprehensible to use existing place names in a targeted manner (as a reference to the place), merely because this may have an ambiguous meaning in other languages.
Consequently, the Board annulled the contested decision and allowed the CTM applied for to proceed to registration.