Hakuna Matata – Everything will be fine

Terms are excluded from registration in the trade mark register if they lack any distinctive character. This is the case for a foreign term if the domestic circles of trade can translate it and therefore understand it, and the translation describes characteristics of the goods or services or is simply a statement of a very general kind that cannot be understood as an indication of the origin of goods. According to a decision of the BPatG, the same applies to terms from youth language.

The applicant wished to register the Swahili term combination "HAKUNA MATATA" as a trade mark for various commercial, entertainment and catering services in the German trade mark register register. The term means something like "no problem", "everything is in order" or also "everything will be fine". The DPMA regards it as a mere motto for the person availing themselves of the service. The Office rejected the application for this reason due to lack of distinctive character, against which the applicant appealed to the BPatG. He argues that the term "HAKUNA MATATA" is not in general use and is not known in Germany either. It is a term from youth language, which constitutes a special language inaccessible to adults.

The court's decision

The BPatG confirmed the DPMA's decision by order of 28.10.2014 (Az. 27 W (pat) 536/14). In the court's view, the fact that the term "HAKUNA MATATA" has found its way mainly into youth language does not prevent understanding by the average consumer. At least adults who have dealings with young people would be familiar with the expression. This applies in particular to teachers, educators, parents and numerous other adults. Furthermore, the term is also used to some extent in art and in business. These goods and services are predominantly intended for adults.

Although the meaning of the term "HAKUNA MATATA" does not have a predominantly descriptive content for the registered services, it does convey a motto, such as "everything will be fine", which does not provide any indication of commercial origin, but rather creates a flair, demands carefree consumer behaviour or promises trouble-free use of the service.

According to the court's reasoning, the registration of the Bavarian "OIS ISI" (everything simple) as a figurative mark apparently rests on the graphical design of a concept that is in itself also not capable of protection. In any case, however, the applicant cannot rely on incorrect application of the law in favour of another in order to obtain an equally incorrect decision. There is no claim to equal treatment in unlawfulness.

Conclusion

Even if youth language were a special language inaccessible to adults, the decision could hardly have turned out differently. After all, young people are also among the relevant circles of trade, which is why their understanding must be taken into account in particular. In this sense – Hakuna Matata!