FICKEN is socially acceptable – trademark for beverages not contrary to public policy

The Federal Patent Court (BPatG) decided by order dated 03.08.2011 – 26 W (pat) 116/10 – that the trademark "FICKEN" registered by the appellant for clothing and beverages (Nice classes 25, 32 and 33) is not contrary to public policy, contrary to the opinion of the German Patent and Trade Mark Office (DPMA), and is therefore to be entered in the trade mark register.

As early as 2008, the Advertising Standards Authority issued a reprimand. It assumed, among other things, that the trade mark designation of a liqueur with the term "FICKEN" would suggest the promotion of sexual success through alcohol consumption. The word mark "FICKEN" registered in 2009 and now classified by the BPatG as unproblematic from a trade mark law perspective was initially rejected multiple times by the DPMA as contrary to public policy. In its reasoning, the Trade Mark Office argued that the general public would understand the word "FICKEN" in its vulgar and offensive meaning and would regard a state monopoly of the term as objectionable.

The BPatG did not share this view – as it had already done in similarly structured prior decisions. A requirement for the rejection of a trade mark application on grounds of being contrary to public policy is that the sense of modesty or morality of a substantial portion of the relevant public is intolerably violated by sex-related indications, whereby the ongoing liberalisation of views on propriety and morals must also be taken into account.

Although these requirements "hardly meet the standards of good taste", they are not met in the case of "FICKEN". Since questions of taste are not a subject of trade mark registration proceedings, sexual statements that are massively discriminatory and/or impair human dignity or can be understood as such must be established beyond mere poor taste. This cannot be assumed in the case of the gender-neutral term "FICKEN".

Incidentally, the BPatG seeks support in the telephone directory (67 bearers of the name), art and culture (Mark Ravenhill – "Shopping & Ficken", Werner Schwab – "Mesalliance aber wir ficken uns prächtig", Denis Fischer – "Ficken vor der Kamera", Almut Getto – "Fickende Fische", M. Heidenreich – "Engel fickt man nicht" etc.) and in the Duden.

Not new, but the most important finding should be that the Trade Mark Office is not called upon to conduct a subjective control of taste and morality in the registration procedure. Why such a control is nevertheless repeatedly carried out in disregard of the case law of the BPatG is simply incomprehensible.