‘Put Putin In’ not registerable as an EU trade mark

Rejections of trade marks that are contrary to public policy or accepted principles of morality (Art. 7(1)(f) EUTMR) are rather rare. The EUIPO added a new facet to this absolute ground for refusal by denying registration of the trade mark ‘Put Putin In’.

Background and EUIPO’s decision

Two individuals filed for registration of the EU word mark no. 018843822 ‘Put Putin In’ for ‘clothing, headgear’ in class 25.

The EUIPO rejected the application because the examiner found it to be contrary to accepted principles of morality. Trade marks cannot be registered if a reasonable consumer with a normal level of sensitivity and tolerance would perceive them as hateful, racist, discriminatory, offensive or promoting drug use.

The relevant English-speaking public understands the application as ‘lock Putin up’, ‘Putin’ obviously being a reference to the President of the Russian Federation.

The examiner considered this sign to be contrary to accepted principles of morality because it capitalizes on the Russian invasion of Ukraine. This has caused inflation, necessitated imports of liquefied natural gas, increased defence spending, Ukrainians fleeing their country, shortage of raw materials, negative impact on emerging and developing countries, and the death of thousands of soldiers and civilians. Although the sign may be perceived as positive, it takes advantage of a tragedy for commercial purposes.

Comment

According to the CJEU in Constantin Film Produktion v EUIPO (C-240/18 P) (discussed here), the concept of accepted principles of morality refers to the fundamental moral values and standards to which a society adheres at a given time. Those values and norms, which may change over time and vary in space, are determined according to the social consensus prevailing in the society at the time of the assessment. Due account is to be taken of the social context, including the cultural, religious or philosophical diversities that characterise it, in order to assess objectively what society considers to be morally acceptable at that time. It is decisive how the relevant public perceives the sign if it were used as a trade mark for the goods or services claimed. It is not sufficient that the sign is in bad taste. Rather, it must be perceived as contrary to the fundamental moral values and standards of society as they exist at the priority date.

The sign ‘Put Putin In’ does not mention the war in Ukraine but it is more or less clear for average consumers that this is the reason why Putin is supposed to be ‘put in’. The decisive point for the EUIPO does not seem to have been the meaning of the sign itself but that its statement is caused by terrible events, even though the sign as such may even be perceived as positive. Would “a reasonable person with average thresholds of sensitivity and tolerance” (Constantin Film Produktion v EUIPO at para. 42) take offence of the words ‘Put Putin In’ if encountered on a t-shirt or cap? Does it violate fundamental moral values and standards to request the incarceration of a politician who ordered the invasion of another country? It seems to be at least debatable that this is the case.

Does EUIPO’s decision mean that any statement, even a positive one, that is caused by or connected to a terrible event, is contrary to fundamental moral values and standards of society? Could Banksy’s EU trademark no. 017981618

and EU trade mark no. 017981615

both registered inter alia for ‘clothing’ be cancelled because they show soldiers and weapons and, therefore, ‘benefit’ from or ‘capitalize’ on the existence of war?

The argument that a trade mark ‘benefits’ from a terrible event and is, therefore, contrary to accepted principles of morality does not take the public’s perception into account.

And what about freedom of expression? It is guaranteed by Art. 11(1) Charter of Fundamental Rights of the European Union and must be considered when applying Art. 7(1)(f) EUTMR (Constantin Film Produktion v EUIPO at para. 56). Should it not be allowed to make statements on events that have a significant impact on society?

The rejection of the application could have been justified without raising all these questions by denying the sign’s distinctive character (Art. 7(1)(b) EUTMR). The statement ‘Put Putin In’ is likely to be perceived as solely a political message, not as an indication of origin.