This Common Practice document establishes general principles on the assessment of signs which are contrary to public policy or to accepted principles of morality, in particular, the common understanding of these concepts, their relationship, the criteria for their assessment, together with examples of signs that could be considered contrary to public policy and/or to accepted principles of morality. It serves as a reference for the European Union Intellectual Property Office (EUIPO), the Benelux Office for Intellectual Property, and Member States’ Intellectual Property Offices, as well as applicants and their representatives.
According to Directive (EU) No 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trademarks (TMD), trademarks which are contrary to public policy or to accepted principles of morality shall not be registered or, if registered, shall be liable to be declared invalid. Whereas other absolute grounds for refusal have, in principle, largely commercial underpinnings, public policy and morality protect or uphold more basic principles and fundamental values.
Public policy can be understood as a set of fundamental norms, principles, and values of societies in the European Union at a given point in time. It includes the universal values of the European Union, such as human dignity, freedom, equality and solidarity, and the principles of democracy and the rule of law, as proclaimed in the Charter of Fundamental Rights of the European Union (CFREU).
It is important to emphasize the fact that the requirements of public policy may vary from country to country, and evolve over time, depending on the specific needs of the society in question. Member States remain essentially free to determine the content of those requirements in accordance with their national needs and international obligations.
According to the Common Practice Document, when deciding whether the relevant sign is contrary to the public policy and/or morality, it is necessary to assess the verbal element(s) and/or figurative element(s) and identify the possible meanings of the sign and/or the message conveyed by it in the languages understood in the territory where the trademark has been applied for or registered. Subsequently, an analysis of whether any of these possible meanings and nuances could be contrary to public policy or to accepted principles of morality should be carried out. For this purpose, all the uses that a particular word may have would be considered (formal, colloquial, slang, etc.).
The assessment of the possible meanings of the sign and/or the message conveyed by it could be corroborated by, inter alia, reliable dictionary entries, encyclopaedias, or examples of use of the term(s) (contained in the sign) found on internet websites. Such sources of reference would, in principle, provide a preliminary indication as to whether the sign could be contrary to public policy or to accepted principles of morality.
Furthermore, it is necessary to assess the verbal element(s) and/or figurative element(s) and identify the possible meanings of the sign and/or the message conveyed by it in the languages understood in the territory where the trademark has been applied for or registered. Subsequently, an analysis of whether any of these possible meanings and nuances could be contrary to public policy or to accepted principles of morality should be carried out.
This document provides examples of trademark applications which were refused due to the public policy and/or morality criteria, such as the example of a trademark application that contains the words KILL THEM ALL for Class 41 of the International Classification of Goods and services: children’s entertainment services. In accordance with this Document, the examiners of the relevant application found that these words convey a message that could be understood as an incitement to kill. In this case, the services applied for, which are addressed to children, accentuate the objectionability of the verbal elements and the sign is more likely to be perceived as an incitement to commit a crime.