© The Author (2007). Published by Oxford University Press. All rights reserved
Deceit and immorality in trade mark matters: does it pay to be bad?
LEGAL CONTEXT: This paper reviews some of the recent leading decisions of the OHIM's Boards of Appeal, interpreting Article 7(1) (f)–(k) of Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark (CTMR).
KEY POINTS: Issues of public morality are considered in Grand Board's decision in ‘Screw You’ and trade marks that deceive the public as to the nature, quality, or geographic origin of the goods and services they cover are looked at in the ‘Wine Oh!’ case. The application of the public interest concept underlying heraldic signs, emblems, and geographical indications appearing on alcoholic beverages is also reviewed.
PRACTICAL SIGNIFICANCE: The attempt to draw together some common threads of the decisions in this area is designed to help practitioners understand why the Boards of Appeal have reacted in a certain way to a particular situation and where the limits currently lie.
Key Words: While traders are free to use offensive and deceptive signs in the course of trade, subject to any criminal or regulatory provisions to the contrary, they may not register such signs as trade marks even if those signs are distinctive of the goods or services in question. • While the principle of non-registrability is well-established, its applicability in a relatively tolerant and definitely multicultural Europe raises many interesting questions, as do the provisions that prevent registration of national emblems and other protected species of sign. • This article probes the issues involved and the manner of their resolution within the context of Community trade mark law, tracing between them a common theme in the protection of the public interest.
* Member of the Second Board of Appeal, Office of Harmonization in the Internal Market (Trade Marks and Designs) (OHIM). The author can be contacted at gordon.humphreys{at}oami.europa.eu (The views expressed in this paper are those of the author and are not necessarily shared by the OHIM).