Arschlecken24 as a trade mark – contrary to morality?

Trade marks can only be registered as a trade mark if they do not encounter any absolute grounds for refusal. One such ground for refusal is that signs which contravene public policy or accepted principles of morality cannot be protected as trade marks. The question of accepted principles of morality is subject to constant social change, so that trade marks which were formerly considered offensive are nowadays sometimes regarded as relatively harmless. Whether this also applies to the trade mark "Arschlecken24" has now been decided by the Federal Patent Court (Bundespatentgericht).

A person filed the trade mark "Arschlecken24" for "Jewellery; jewellery items; wristwatches and wall clocks; printed matter; paper goods; beer coasters; glassware, porcelain, earthenware and ceramic goods, insofar as contained in Class 21; clothing items; headwear" at the German Patent and Trade Mark Office.

The Office rejected the application on the grounds that the trade mark contravened accepted principles of morality. "Arschlecken" was not to be understood merely in the sense of "get lost" or "leave me alone", but in its literal meaning. Entering the term used as a word component into search engines frequently led to relevant pornographic and sex websites. Together with its numerical component, the sign acquired the meaning "Arschlecken around the clock" and thus a content which, with all due restraint, was both offensive and vulgar and in appallingly poor taste. The goods claimed were directed at broad circles of the public, including inter alia children and young people.

Against this decision, the applicant filed an appeal. The term "Arschlecken" was, it was contended, a term firmly anchored in German colloquial language, which is also used in film, television and literature and is understood as "leave me alone".

Court decision

The BPatG (Decision of 09.02.2011 – Az. 26 W (pat) 31/10) dismissed the applicant's appeal and upheld the German Patent and Trade Mark Office's view.

In its reasoning, the patent judges stated that the term "Arschlecken" has been in use in German since around 1500 and has been known to the general public at least since Johann Wolfgang von Goethe's Götz von Berlichingen (1773, siege scene in Act 3) as the shocking insult mentioned there against the emperor's messenger. Colloquially, the expression continues to be used today as a crude form of provocative rejection, in which at the same time rejection of or rebellion against a person or institution more powerful or influential in relation to the speaker may be expressed. In this form, the expression is still capable of being perceived as morally offensive by a considerable circle of persons whose sensibilities deserve respect.

Furthermore, the expression constitutes the description of a sexual practice, the mention of which is capable of offending the moral sensibilities of a considerable and respectable circle of persons. This circumstance precludes publication of the filed expression as a component of a trade mark, for which a certificate bearing the Federal Eagle as a symbol of official recognition is granted.

Conclusion

The Federal Patent Court's decision is unconvincing against the background that trade marks such as "Ficke", "Fürn Arsch", "Leck mich am Arsch" (the list could be extended indefinitely) have been registered and partly confirmed by courts. The Federal Patent Court states with regard to the trade mark "Fick Shui" that a word component which has sexual references and is of vulgar linguistic origin does not constitute a ground for refusal for a trade mark. If, however, "Ficken" is not considered to be contrary to morality, it is unconvincing to assume this for "Arschlecken".