Trade mark protection for bound latex woman of Die Ärzte?

The Federal Patent Court (Bundespatentgericht) was asked whether a figurative mark, which depicts a comic drawing of a woman dressed in latex and furthermore bound and gagged, could be eligible for trade mark protection, or whether this is excluded due to breach of public policy and accepted principles of morality.

The band 'Die Ärzte' wished to register the disputed figurative mark for goods of classes 16 and 18 at the German Patent and Trade Mark Office (DPMA). The woman dressed in latex, bound and gagged, has been a visual companion of the musical group at their various performances for many years.

The DPMA rejected the application on the grounds that the figurative mark in question had an offensive and brutal content. An absolute ground for refusal on the basis of public policy and accepted principles of morality stood in the way of registration.

Against the decision of the trade mark office, Die Ärzte lodged an appeal. In support thereof, they argued that the depiction of the gagged and bound woman was harmless and ironic.

Decision of the court
By means of Beschluss vom 28.09.2010 – Az. 27 W (pat) 96/10 the Federal Patent Court (Bundespatentgericht) upheld the decision of the DPMA. The comic drawing of a woman dressed in latex, bound and gagged, could not be afforded trade mark protection as such a depiction breached public policy and accepted principles of morality.

The mere fact that the woman depicted here was sparsely clothed would not in itself give rise to any breach of public policy and accepted principles of morality. However, the person in the depiction was gagged and bound, so that the image had a brutal and degrading significance. Trade marks which glorified violence and showed persons who were victims of violence had a discriminatory and thus contrary to public policy and accepted principles of morality content. The depiction did not reveal any ironic, humorous or critical content in this regard, so that eligibility for registration was to be denied.

Conclusion

Even if Die Ärzte by no means intended to glorify violence against women by means of the disputed figurative mark, the comic drawing could be understood by the 'uninitiated' consumer in such a way that registration had to be refused. Trade marks with content that shows persons as victims cannot in principle receive state protection and are therefore not capable of being trade marks. Despite this judicial defeat, the band will certainly find another logo for its merchandising items. At concerts, the latex lady will certainly continue to be present.