In case T-417/10, the General Court confirmed the decision of the Second Board of Appeal which rejected the following CTM application (here below) for goods in classes 33, 35 and 39.
The OHIM rightly held that the sign is contrary to Article 7 1) f) of the CTMR which provides that “trade marks which are contrary to public policy or to accepted principles of morality” cannot be registered. The standard to be considered is the one of the reasonable consumer with average sensibility and tolerance thresholds (see Paki case, T526/09).
The Court upheld the Board’s findings that the expression ‘HIJO PUTA’ will be understood as an offensive term for the Spanish speaking public and rejected the applicant’s claim that common sense dictates that this will be understood as a laudatory good natured sign (i.e.: calling someone ‘son of a …’ can be meant in a nice way).
The words ‘Que bueno ye’ which are used only in the region of Asturias, meaning ‘Que bueno es’ (this is good!) will not hold the attention of the average consumer, nor the figurative elements, in particular due to the size and place of HIJO PUTA on the sign.
The applicant’s claim that this refusal violates his freedom of expression, according to article 10 of the ECHR does not stand since he is still free to market his alcoholic products bearing that sign.