Freedom of Expression and Immoral Trade Marks: the Crystallising EU Approach

Freedom of Expression and Immoral Trade Marks: the Crystallising EU Approach

Journal article

1 electronic resource (page 703–704)

In 2020, the Court of Justice of the European Union (CJEU) in Constantin (Case C‑240/18 P) considered the title of a popular German comedy movie, ‘Fack Ju Göhte’, as not offending morality as a registered mark. The Court also made a forceful statement (at [56]) that freedom of expression (FoE), protected under Art. 11 of the Charter of Fundamental Rights of the EU (CFR), must be taken into account when applying Art. 7(1)(f) of the Regulation 2017/1001 on the EU Trade Mark (EUTMR). The latter provision, along with Art. 4(1)(f) of the Trade Mark Directive 2015/2436 (TMD), sets out the refusal ground concerning marks contrary to public policy or accepted principles of morality. This departed from the view that FoE is not restricted by a refusal to register a mark since the mark can still be used (e.g., Case T-52/13, Efag, at [40]). Yet, the CJEU did not specify in Constantin how to integrate FoE into the assessment. The problem was also eschewed in the ‘CP 14 Common Practice’ adopted in 2024 within the European Union Intellectual Property Network by the European Union Intellectual Property Office (EUIPO) and participating IP Offices.

Crossref

GRUR International ; 74, 8, 2025, 2632-8550.

[Oxford, England] : Oxford University Press (OUP), 2025.

English

https://academic.oup.com/grurint/article/72/3/231/6998505

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