Sign 'Massacre' not registrable as a mark

In a proceeding on appeal, the Federal Patent Court had to decide whether the sign 'Massacre' could be registered as a mark or whether registration of the sign had to be refused on grounds of immorality.

The application for the German word mark 'Massacre' for the following goods and services

Class 25: Clothing and footwear;
Class 28: Gymnastics and sports articles;
Class 41: Entertainment, cultural and sporting activities

was rejected by the German Patent and Trade Mark Office (DPMA) because, in the opinion of the office, the applied-for sign was contrary to public policy in the trade mark law sense.

The applicant contested this rejecting decision on the ground that the term 'Massacre' was registrable, as is the German registered word mark 'Ficken', even though the word did not meet the requirements of good taste.

Court's decision

By order of 31.07.2012 – Az. 27 W (pat) 511/12 – the Federal Patent Court (BPatG) dismissed the appellant's appeal on grounds of immorality of the sign.

Coarse and tasteless expressions might be registrable, since an aesthetic examination of good taste is not subject matter of the trade mark registration procedure. However, the sign 'Massacre', unlike the mark 'Ficken', is not a colloquial expression but is contrary to public policy and to public morals. This was to be assumed in the present case because the word meaning of the term 'Massacre' contained a statement which was contemptuous of human beings and thereby transported corresponding contents which placed the victims of massacres in a context unworthy of their memory and must injure their relatives.

Conclusion

For signs whose word meanings relate to the sexual, religious or political sphere, the applicable standard for public morals should be examined as far as possible before filing a trade mark application, in order to avoid refusal by the DPMA. Since the question of immorality is subject to the passage of time, the answer to this individual case question is often not entirely straightforward. A refusal on grounds of immorality of the mark is in any case very rare, as can be seen from the successful trade mark registration of the sign 'Ficken'. Where there appears to be an incitement to or toleration of behaviour glorifying violence, the Federal Patent Court, as indeed the DPMA, appears rightly to draw a line.