As you probably already know, the United Kingdom will leave the European Union in less than a year from now. There is still much uncertainty about the outcome of this process, as well as about the final conditions of this political divorce. What we know so far, however, is that the word mark BREXIT cannot be considered to be immoral and it is thus eligible for registration by the EUIPO. Below you can find the somehow turbulent story behind this conclusion.
On July 8, 2016, just two week after the referendum in the United Kingdom took place, an application was filed to the EUIPO for the word mark BREXIT in classes 5, 32 and 34, with the description including mostly various drinks and cigarettes (EUTM 015623631). The first examination of the application went totally wrong for the applicant, because the examiner has found the word mark BREXIT not only devoid of any distinctive character, but also being contrary to public policy or to accepted principles of morality.
The examiner’s reasoning behind this decision was that the organs of government and public administration should not positively assist people who wish to further their business aims by means of trade marks that offend against certain basic values of civilized society. Citizens throughout the Union would be deeply offended if the trade mark applied for were to be registered as a European Union trade mark and used not for the purpose for which it was originally coined, but as a mere product identifier of for example dietary supplements, energy drinks or cigarettes. The examiner concluded that the use of the trade mark applied for BREXIT in relation to the goods in classes 5, 32 and 34 can have an offensive impact on the sensitivity of the average European consumer and in particular those who participated in the BREXIT referendum and were in favor of the UK to stay in the EU.
The applicant, unconvinced by the argumentation of the examiner, appealed. This was a good idea, because the Board of Appeal has annulled the contested decision in its entirety. The Board pointed out that it might be true that the part of the population of the United Kingdom might have been upset by the results of the results of the Brexit referendum. Being upset, however, does not constitute offence. Consequently, the word mark BREXIT is not repugnant from the moral point of view, merely because the part of the public does not like the idea of it. Thus, the word BREXIT cannot be found immoral, in and of itself, nor when it is used as a brand for the goods for which it was applied for.
Additional, the Board found that the term BREXIT had no moral connotation and concerned a sovereign political decision, taken in conformity with all legal and constitutional requirements. It also considered that refusal of the BREXIT trade mark might be a breach of the fundamental right to freedom of expression, as set out in Article 11 of the Charter of Fundamental Rights of the EU and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
As you can see, the Brexit has already produced some unexpected consequences. We can expect much more to come, as the negotiations over the withdrawal of the United Kingdom from the European Union are approaching their final stage.
Piotr Sliwinski is an Intellectual Property Associate based in the Warsaw, Poland office of LegalForce RAPC Worldwide. He graduated in law from the Cardinal Stefan Wyszynski University in Warsaw and in sociology from the University of Warsaw. In 2016 he earned his Master of Laws at the University of Bonn in Germany. Moreover, in recognition of his academic achievements he had been sponsored two semesters at the Goethe University in Frankfurt am Main. Piotr is fluent in Polish, English, and German. He also speaks Russian.