The German Federal Patent Court and the changing principles of morality

Some surprising news - well, to this prudish Kat anyway - come from the German Federal Patent Court (Bundespatentgericht) which has decided that the trade mark "F*CKEN" (register entry shown to the left in prudishly small print) can be registered for beverages. The German word is similar to the English word so that I do not believe anyone will need a translation. The German Patent and Trademark Office (DPMA) had initially (and in this Kat's view rather not surprisingly) refused registration of the mark as being contrary to public policy or to accepted principles of morality.

On appeal, the Federal Patent Court was a lot more open-minded, shall we say. The judges held that due to the increasing liberalisation of the general public's views on conventions and principles of morality the mark "F*CKEN" did not affect the general public's moral sensitivities in a completely intolerable way - with the general public being the relevant consumers of beverages in this case. The judges would however draw a line and not accept trade marks for registration that were more than of mere bad taste but which contained an additional sexual meaning that was massively discriminatory. For example: gender specifically discriminatory and/or marks which affect human dignity or which could at least seriously be interpreted as having such a meaning

The word "F*CKEN" however was gender-neutral, the judges held, and as such not one-sidedly discriminatory. Furthermore, the word was widely used in everyday language and was no longer sexually provocative even though the word "F*CKEN" was part of "vulgar language" and not word of "good taste". Diligently conducting further research, the court also found 67 phonebook entries for name "F*cken" within Germany and stressed that the word could be found in dictionaries. In addition, the word "F*CKEN" was used in critically acclaimed film titles, TV programmes and book titles, such as "Shoppen & F*cken" and "F*ckende Fische" (see left). The judges also pointed out that the word was included in the title of a theatre play ("Mesalliance aber wir f*cken uns prächtig", in English: "Mesalliance but we are f*cking happily") written by the critically acclaimed author Werner Schwab and this play had been shown on German theatre stages. In light of this the DPMA's refusal had to be reversed.

A rather progressive court that clearly did all the background research… Merpel rather enjoyed reading the decision and will now do some research of her own, she is in particular interested in "F*ckende Fische", age restriction 12 years. She wonders for how long the DPMA's trade mark register will retain the same age restriction.

Case reference: 26 W (pat) 116/10 of 3 August 2011.

To read this decision in its entirety, please click here.


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