European High Court Rules ‘Fack Ju’ Not Offensive

(CN) – Europe's gatekeepers for trademarks were told on Thursday by the European Union's highest court they were wrong to deem a popular German film comedy's title “Fack Ju Göhte” immoral and therefore unfit for use as a label.

The European Court of Justice ruled that the film series' title, “Fack Ju Göhte” – a funny phonetic translation of how a German might say “Fuck you, Goethe” – proved to not be morally reprehensible to the German public and should be allowed as a label.

The court said the success the films enjoyed in Germany and Austria showed the public did not see the titles as “going against the fundamental moral values and standards of society.”

Trademark authorities “should have demonstrated concrete evidence that the German-speaking public thinks of the trademark as morally unacceptable,” Casper Hemelrijk, an expert with the intellectual property firm Novagraaf Nederland, said in an email.

“The authorities cannot make the assumption that the transcription in another language is considered morally unacceptable, just because in the original language it is morally unacceptable,” he added.

He said the ruling may force regulators in the future to “take more effort” to collect evidence before they refuse trademarks on similar grounds.

In 2015, the European Union Intellectual Property Office threw the trademark out because regulators found it immoral. The EU's trademark regulators are known for being restrictive when it comes to potentially offensive terms. In part, that is because EU regulators must consider the sensitivities of a large and multinational population.

In rejecting the trademark, the regulators said the German-speaking public recognizes in the words “Fack Ju” a correlation with the vulgar and offensive English phrase “Fuck you.”

The trademark office said adding "Göhte" – a phonetic transcription in German of Goethe – to the title did not “substantially alter the perception of the insult ‘Fack ju’,” court records show.

The film creators came up with the title as a humorous allusion to the rigors of studying the famous German writer, poet and thinker Johann Wolfgang von Goethe.

The first film was wildly successful in 2013 with more than 7 million tickets sold in Germany. It spawned two sequels and it was shown across Europe.

The films are set in a German school and center on the interactions between a crook-turned-teacher and a motley crew of problem students in a chaotic class. In one scene, students are unable to correctly spell “fuck you” in German. The films' titles were translated to “Suck Me Shakespeer” for the English market.

The European Court of Justice ordered the trademark office to review its trademark decision in light of the new ruling. The high court's finding also overrides a previous ruling by Europe's General Court, which handles trademark disputes and had agreed with the trademark office.

Constantin Film, the films' producer, did not reply to a query for comment on Thursday. It applied for the trademark and appealed the negative rulings.

In a news release, the high court said the previous rulings “failed to take sufficient account of the fact that the title” did not “appear to have been perceived as morally unacceptable by the German-speaking public at large.”

“Despite the high visibility accompanying such a success, the title of those comedies does not appear to have stirred up controversy among that audience,” the ruling states.

The court also noted that the comedies had been watched by young people and that the Goethe Institute even used the films for educational purposes. The institute promotes the German language around the world.

The court also found that “the perception of the English phrase ‘Fuck you' by the German speaking public is not necessarily the same as the perception thereof by the English-speaking public.”

Last summer, a magistrate for the European Court of Justice issued an advisory opinion that challenged the reasoning of the General Court and trademark office. In that opinion, Michal Bobek used Goethe's own works as an example.

“It can hardly be suggested that the works of Johann Wolfgang von Goethe met, at the time of their publication, with universal acclaim,” Bobek wrote. “They certainly found instant ardent admirers. But they also encountered strong criticism and rejection. In particular, ‘Die Leiden des jungen Werthers’ (‘The Sorrows of Young Werther’) was banned in a number of German territories and elsewhere. As it was put, for example, in the letter of the Danish Chancery to the Danish King requesting that the book be banned in Denmark, the book was deemed a work that ‘ridicules religion, embellishes vices, and can corrupt public morality.’”

Constantin Film wants the trademark to be able to use it on a variety of goods, such as office items, games, jewelry and drinks.

Trademark law in Europe prohibits the registration of trademarks deemed to be against public policy or morality as stipulated under the laws of the EU and its member states. The rules are meant to protect children and young people from vulgar, obscene and disturbing brand names. Regulators can also reject trademarks deemed to disparage a race or culture.

Under these measures, a number of trademarks using the word “fuck” have been rejected, such as “fucking freezing!”, “FUCK CANCER” and “Fuckin’ Monday,” according to trademark experts.

There have been cases in Europe where seemingly innocuous trademarks have been rejected because of their vulgar meaning in another language. This was the case, for example, with an application for “CURVE,” a vulgarity in Romanian.

“Where the relevant public in one of the 28 member states has an objection to the trademark, it has to be denied for the entire EU,” Hemelrijk, the trademark expert, wrote in an analysis of the “Fack Ju Göhte” case.

He also said terms with criminal connotations have been rejected too, such as “LA MAFIA.” Likewise, regulators have rejected trademark applications designating terrorist groups, such as “ETA” (the initials for a Basque separatist group) and “IRA” (the initials for the Irish Republic Army terrorist group). Trademarks referring to a narcotic can also get rejected.

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(Courthouse News reporter Cain Burdeau is based in the European Union.)

Follow @cainburdeau

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