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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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Anthonia Ghalamkarizadeh
Birgit Clark
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Christian Tenkhoff
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German Federal Patent Court: "Abgef*ckt"

The German Federal Patent Court seems to assess more than its fair share of trade marks that are of questionable taste (see reports on the court’s orders relating to the sign “Headf*ck” here  and relating to the sign “Ficken” here)  - and these decisions are not only interesting from a purely legal perspective, but also give the reader an interesting insight in the development of the German language.

In October last year the judges had to decide on the registrability of the sign “abgef*ckt” – which translates into the English term “f*cked up”-  for merchandise goods and services in classes 16, 25, 35, 38, 41, 43.  The court refused the sign on the grounds of lack of distinctiveness stating that “Abgefuckt” was a common term, which had migrated from the English language into colloquial German. The judges argued that the term stood for a “certain style that was different from a traditional, conservative style”.   The term was commonly used and consumers would see it as a descriptive term rather than an indicator of trade origin. The use of the English language would not render the sign distinctive since this was a common practice, which German consumers were familiar with.  That there was a “rather small part of the population” that would not understand the term was not enough to assume distinctiveness. 

In light of this assessment the court refused the application for registration and felt no need to discuss whether it also fell foul of Article 8(2) No. 5 German Trade Mark Act (contrary to accepted principles of morality).

Case reference Bundespatentgericht, 27 W (pat) 555/12 of 23 October 2012 “Abgef*ckt

Comment: the author has used the sign '*' to replace the letter 'u' in the term 'Abgef*ckt' to allow for a safe delivery of this email.

Posted by: Birgit Clark @ 10.17
Tags: Bundespatentgericht, Germany, Distinctiveness, Morality,
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