Trade mark 'Wanderhure' (The Wandering Prostitute) – immoral?

Is the sign 'Die Wanderhure' an immoral term and therefore not capable of registration? This legal opinion was held by the trade mark office in Alicante and it rejected the trade mark application on the grounds of absolute grounds for refusal.

The publisher, the Droemer Knaur publishing group, and the authors of the novel 'Die Wanderhure' Iny Klocke and Elmar Wohlrath, filed the title of their bestselling novel with the European Union Trade Mark Office HABM in Alicante as a Community trade mark for certain goods and services in classes 9, 16, 35, 38 and 41.

The HABM refused to register the trade mark. The word elements of the sign applied for consisted in part of the term 'HURE' as a synonym for prostitute, which is a vulgar and indecent expression and an offensive insult and therefore not capable of registration.

Against the refusal to register their sign, the publishing group and the authors filed an appeal.

Decision of the trade mark office

The Board of Appeal of the HABM reversed, in a decision of 28.05.2015 (Az. R 2889/2014-4), the refusal of the trade mark office and allowed the registration of the Community trade mark 'Die Wanderhure'.

Although the registration of trade marks that are derogatory, discriminatory, blasphemous or insulting or that incite to criminal offences is statutorily prohibited, such an assertion contrary to public morality must arise from the semantic content of the word mark as a whole. This was not the case here.

The broad public success of the book and also of the film adaptation
demonstrated that the public took no offence at the content of the book – and certainly not at the term which constitutes its title. The city of Konstanz also had no problem with officially offering special walks 'in the footsteps of the Wanderhure'.

The contested decision of the trade mark office conflated the mention of a phenomenon with the phenomenon itself. A trade mark registration could not be refused because a component of the sign is to be qualified as an immoral word. If one were to apply this standard, all crime novels whose title
contains the word 'murder' would have to be denied protection. The contested decision failed to distinguish between fact and fiction.

The sign applied for contains no semantic statement that could be related to a specific person or group of persons. Nor does it call for a specific course of action. The term as a whole does not address anyone directly and does not insult anyone.

Therefore, the HABM must accede to the Community trade mark application 'Die Wanderhure'.

Conclusion

We can formulate no better conclusion than the Fourth Board of Appeal of the HABM itself did, in line with the goods and services registered for the trade mark:

'The wandering lady may therefore continue to wander, and her wandering routes can be mapped with 'scientific and surveying instruments', regularly updated in 'looseleaf collections', processed with 'OCR character recognition', discussed in 'chat rooms' and declared to be a 'sporting activity', whereby the Board naturally assumes that the claimed 'educational' services refer to those of non-profit social work and not to services providing instruction in prostitution.'