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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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THURSDAY, 6 MAY 2010
USSR coat of arms "contrary to public policy", rules OHIM
Class 46 thanks Fabrice Roberts for drawing our attention to a decision of the Second Board of Appeal of OHIM in Case R 1509/2008-2.  In this decision the Board dismissed an appeal by the Community trade mark applicant, Couture Tech Ltd (from the British Virgin Islands), against OHIM's refusal to allow registration of a figurative mark consisting of the coat of arms of the Soviet Union, with red star, harmmer and sickle for goods and services in Classes 3, 14, 18, 23, 26 and 43. 

The ground of refusal was that the mark was contrary to public policy or accepted principles of morality based on how the mark would be perceived in, at least, Hungary, Latvia and the Czech Republic. 

The reasoning of the Examiner is worth noting in this regard:

"The sign applied for consists of the exact representation of the coat of arms of the Soviet Union, including the red star, sickle and hammer, and 15 ribbons containing the motto ‘proletariats of the world, unite!’ in all the 15 languages of the Soviet Socialist Republics of the Soviet Union. This emblem was the official symbol of the Soviet Communist party that ruled the country according to the Soviet constitution. It is common knowledge that the Soviet Union was a totalitarian state that massively violated human rights, under the leadership of the Soviet Communist party, committed crimes against humanity, including summary executions, torture, sending innocent people to labour camps, involuntary settlement and stripping of citizen’s rights. It is commonly accepted that the ethnicity-targeted population transfers in the Soviet Union led to million deaths due to inflicted hardships. For example, 10 percent of the entire adult Baltic population was deported or sent to labour camps, as can bee seen from Wikipedia printouts.

Against this background, it is obvious that a sign which alludes to the Soviet totalitarian regime and its ideology which has tragically affected many countries, nations and individuals, is contrary to public policy and accepted principles of morality. In view of the genocide and other crimes committed by the Soviet regime under the leadership of the Soviet Communist party, it is clear that its official symbol may cause outrage in the minds of people in those Member States which have been directly affected. Particularly from Baltic States, where the majority of ordinary citizens whose values and standards would be offended when seeing the sign applied for in relation to the claimed goods and services, since it would be perceived by them as a glorification of the Soviet totalitarian regime.

Under the laws of some Member States Soviet symbols have been equalled to Nazi symbols. For instance, Latvia, Estonia and Hungary ban the display of both Nazi and Soviet symbols at public meetings. According to Article 11(5) of the Latvian Law on Meetings, Street processions and Pickets of 16 January 1997, participants in meetings, streets processions and pickets during such events are prohibited from utilizing former USSR and Nazi German flags, coats of arms, hymns and symbols. In Hungary, the Criminal Code, Act IV/1978, Chapter XVI (Crimes against public order), title 2 (Crimes against public peace), Section 269/B expressly prohibits ‘use of symbols of despotism’. Since these provisions reflect the public beliefs as regards those symbols, it is reasonable to consider that the registration of the sign applied for bears a serious risk of causing public disorder".

The fact that the same mark was accepted for registration in respect of goods in other Classes was described as an error in law.

Posted by: Blog Administrator @ 15.58
Tags: Public policy, principles of morality,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.


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