In an appeal brought by the applicant to a decision of the German Federal Patent Court, the German Federal Court of Justice (Bundesgerichtshof) recently had to decide on the registrability of the word and device mark READY TO FUCK (see above) covering merchandise goods and services in classes 16, 25 and 41.

Somewhat unsurprisingly, the court confirmed the Federal Patent Court‘s view that the mark did not comply with Article 8(2) No. 5 German Trade Mark Act finding that the mark was contrary to accepted principles of morality. 

The judges explained that whether a mark fell foul of Article 8(2) No. 5 German Trade Mark Act had to not only be based on the views of the consumer circles that were targeted by the goods and services offered under that mark but also by those parts of the public that could encounter the mark in everyday life, which in this case could include children. Inter alia, referring to the General Court’s recent decision in the PAKI Logistics case (see here), the court stressed that marks that are of poor taste could be registrable and that there should be no moral censorship by the courts, however it drew a line in this case. The judges also pointed out that the Federal Patent Court had correctly included the effect this mark could have on young children and teenagers - and those grown-ups responsible for their education - in its assessment as to whether a considerable part of public, whose sense of morality had to be respected, could regard it as against contrary to accepted principles of morality.  

Again agreeing with the Federal Patent Court’s assessment, the Bundesgerichsthof found that German consumers would not regard the word and device mark’s graphic design (with the letters ‘UC‘ being crossed out and replaced by the letters ‘AA‘) as a “play on words“ and relate the word ”FAAK“ to a village near Kärnten without deeper analysis and interpretation. 

Furthermore, the court concurred with the Patent Court that the word combination had to be assessed as filed and that alternative interpretations of the word “fuck“ when combined with other words were irrelevant for the assessment of the mark.  The court therefore disagreed with the applicant who had contended that the Patent Court had applied a “narrowly sexualised interpretation” of the sign.  The applicant had creatively argued that the word “fuck“ could be seen as a "powerful and bawdy reinforcement" of a message, akin to the words “damn“ or “rubbish“ and have alternative meanings such as "piss off" (fuck off), "what the devil " (what the fuck), "I was robbed" (I was fucked) . 

Class 46 comment:  this decision is not only interesting from a purely legal perspective, but also gives the reader an interesting insight in the development of the German language and the migration of English words. 

Case reference:  Bundesgerichtshof, I ZB 89/11 of 2 October 2012 (available here).