Amicus Brief

Case R-260/2021-G, Matthias Zirnsack vs. EUIPO

Published: June 3, 2022

Court

Grand Board of Appeal of the European Union Intellectual Property Office

Our Position

INTA proposes a test for when a trademark is contrary to accepted principles of morality under Article 7 (1) f of the European Union Trade Mark Regulation (EUTMR), namely that the mark must be perceived as immoral according to the majority of the relevant public as a factual and not as an abstract legal assessment. In particular, this ground of refusal/invalidity should apply only if the majority of the relevant public perceives the content of a mark as violating the accepted principles of morality. Once this can be established with the necessary degree of certainty, the judicator body should then balance principles of morality with the right of free speech. In this last regard, INTA takes the view that, in the Fack Ju Göhte case (GCEU, February 27, 2020, Constantin Film GmbH v. EUIPO C-240/18 P, Fack Ju Göhte, EU:C:2020:118), the CJEU made it clear that freedom of expression clearly applies in the field of trademark law, and specifically in the assessment of whether a sign is contrary to the principles of morality under EUTMR Article 7 (1) f .