{"id":26636,"date":"2024-11-29T11:11:26","date_gmt":"2024-11-29T11:11:26","guid":{"rendered":"https:\/\/thinx.expert\/?p=26636"},"modified":"2024-11-29T13:57:19","modified_gmt":"2024-11-29T13:57:19","slug":"eu-court-and-trademarks-the-rejection-of-the-ukrainian-political-slogan","status":"publish","type":"post","link":"https:\/\/thinx.expert\/en\/eu-court-and-trademarks-the-rejection-of-the-ukrainian-political-slogan\/","title":{"rendered":"EU Court and trademarks: the rejection of the Ukrainian political slogan"},"content":{"rendered":"

Author: Dr. Manuela Ferrario<\/a><\/em><\/p>\n

In the judgment of November 13, 2024, concerning case T-82\/24, the General Court of the European Union confirmed the refusal for lack of distinctive character of the application for a figurative trademark represented below, seeking protection for products and services falling under classes 9, 14, 16, 18, 25, 28, and 41:<\/span><\/span><\/p>\n

\u00a0<\/span>\"\"<\/p>\n

Background<\/span><\/b>\u00a0<\/span><\/p>\n

In December 2022, the EUIPO examiner had rejected the trademark application based on the combined provisions of Article 7(1)(f) EUTMR and Article 7(2) EUTMR, deeming the application unregistrable as it was contrary to public order and morality.<\/span>\u00a0<\/span><\/p>\n

The applicant, the Administration of the State Border Guard Service of Ukraine, filed an appeal against the decision.<\/span>\u00a0<\/span><\/p>\n

In December 2023, the Board of Appeal dismissed the appeal on the grounds of the lack of distinctive character of the trademark (Article 7(1)(b) EUTMR).<\/span>\u00a0<\/span><\/p>\n

The Judgment of the Court<\/span><\/b>\u00a0<\/span><\/p>\n

Following a further appeal to the Court, the same ruled in line with its predecessors, rejecting the trademark registration whose main message is of a political nature, based on the general principle that the relevant public is not attentive towards a sign that does not immediately provide an indication of the origin of the goods and services, as it neither perceives nor remembers it as a trademark (see, on this point, the case law on promotional slogans of the EU General Court of 05\/12\/2002, T-130\/01, Real People, Real Solutions, EU:T:2002:301, and of 11\/12\/2012, T-22\/12, Qualit\u00e4t hat Zukunft, EU:T:2012:663).<\/span>\u00a0<\/span><\/p>\n

The applicant unsuccessfully attempted to demonstrate that the phrase included in the filed sign was sufficiently original, distinctive, and relatable to a specific entity identifiable by the relevant consumer. In fact, it is a war cry issued by a Ukrainian border guard on Snake Island on February 24, 2022, the first day of Russia’s large-scale invasion of Ukraine.<\/span>\u00a0<\/span><\/p>\n

According to the applicant, the average European consumer would not understand the meaning of the foreign language expressions and would not have had the opportunity to hear them before the trademark filing. Furthermore, as a highly symbolic political slogan, it would only be immediately associable with the Ukrainian state. Moreover, the applicant argued that, in the case of trademarks composed of political slogans, the identity of the applicant could be taken into account in the assessment of distinctiveness.<\/span>\u00a0<\/span><\/p>\n

However, the Court held that the very significant symbolism of the phrase led the relevant public to perceive only the political message without remembering either the sign as a trademark or the indication of the commercial origin of the claimed products and services.<\/span>\u00a0<\/span><\/p>\n

As a political slogan, repeatedly used to demonstrate support for Ukraine, the phrase forming the sign quickly became a symbol of the fight against Russian abuses, perceived in its pure and unique promotional message aimed at persuading the public.<\/span>\u00a0<\/span><\/p>\n

Regarding the linguistic issue, the phrase in Russian would be understood by the Russian-speaking public of the European Union, while the phrase in English would have a much wider target as the terms it comprises are part of basic vocabulary.<\/span>\u00a0<\/span><\/p>\n

It is therefore evident that the use in a non-commercial context created an indissoluble link between this context and the recent historical events\u2014well-known to the average consumer of the Union\u2014during which the phrase was uttered. A sign created in such a context can generally acquire distinctiveness as a trademark only if consumers subsequently have the opportunity to encounter that trademark in a purely commercial sphere (the same principle was previously affirmed by the Enlarged Board of Appeal’s decision of 30\/01\/2019, R 958\/2017-G, BREXIT (fig.), \u00a7 50-53).<\/span>\u00a0<\/span><\/p>\n

This does not necessarily imply that a political slogan is always devoid of distinctiveness, but each sign must be carefully evaluated according to the circumstances of the specific case to verify the minimum requirements for registrability.<\/span>\u00a0<\/span><\/p>\n

The Court therefore did not err in considering the sign devoid of distinctive character.<\/span>\u00a0<\/span><\/p>\n

Incidentally, it is worth noting an additional principle reiterated by the present judgment, according to which the Board of Appeal, within its wide discretionary power, has the ability to invoke a ground for refusal different from that used by the first-instance examiner.<\/span>\u00a0<\/span><\/p>\n

In fact, since the Board of Appeal can conduct a fresh, complete examination of the application, it may assess and invoke the grounds it deems most relevant, regardless of the reasoning provided by the examiner.<\/span>\u00a0<\/span><\/p>\n

The only condition that must be respected, for the proper application of the law, is to ensure that the applicant can exercise their right to be heard. It is therefore essential that the applicant, before the issuance of the decision, be informed of the Board\u2019s new assessments and be allowed to submit observations on the matter.<\/span>\u00a0<\/span><\/p>\n

Thus, a trademark initially refused for being contrary to public order and morality was ultimately refused, after two further stages of judgment, for a different reason: the lack of distinctive character. <\/span>\u00a0<\/span><\/p>\n

In conclusion, the present case has proven interesting both from the perspective of assessing the distinctiveness of political slogans and for deepening procedural aspects that are often overlooked.<\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Author: Dr. Manuela Ferrario In the judgment of November 13, 2024, concerning case T-82\/24, the General Court of the European Union confirmed the refusal for lack of distinctive character of…<\/p>\n","protected":false},"author":2,"featured_media":26630,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[204,205],"tags":[],"class_list":["post-26636","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-en","category-pressroom-en-2"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/posts\/26636","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/comments?post=26636"}],"version-history":[{"count":2,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/posts\/26636\/revisions"}],"predecessor-version":[{"id":26638,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/posts\/26636\/revisions\/26638"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/media\/26630"}],"wp:attachment":[{"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/media?parent=26636"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/categories?post=26636"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thinx.expert\/en\/wp-json\/wp\/v2\/tags?post=26636"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}