Goethe Forth and Trademark, Magistrate Tells Filmmakers

(CN) – An EU magistrate chided trademark regulators Tuesday for denying protection to the filmmakers behind a German teen romp whose title insults the illustrious writer Goethe.

Johann Wolfgang von Goethe at age 79 in 1828. Portrait by Joseph Stieler on behalf of King Ludwig I of Bavaria.

EUIPO, short for the European Union Intellectual Property Office, declined to register the the mark “Fack Ju Göhte” in September 2015, spurring an appeal by the makers of a film with the same name.

Though grammatically nonsensical, the title is meant to sound like a vulgar English expression — in this case one directed at a venerated German thinker by students who presumably have been forced to read his work.

Even without the usual sexual connotations that accompany the expression, however, a EUIPO appeal board considered the title shocking and vulgar.

Advocate General Michal Bobek also surmised Tuesday that the misspelling of Johann Wolfgang von Goethe’s name hardly tempered the insult for EUIPO.

As the case advances now to Luxembourg, Bobek recommended that the European Court of Justice side with Constantin Film Produktion GmbH.

Bobek began the opinion by highlighting the particular irony of Goethe’s involvement in the case.

“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.’”

For its part, Constantin Film Produktion questioned the basis EUIPO had to take offense when theaters across Europe already screened the film with no apparent damage to the public psyche.

Though Bobek agreed with EUIPO that the approval of the title by film regulators is not conclusive evidence in the trademark case, he said it certainly bears consideration.

“Even if they are indeed different regulatory regimes, there is a substantive overlap between such parallel assessments: both frameworks of assessment have as their point of departure the same public and the assessment of morality and vulgarity within that same public at the same, or a very similar, point in time,” Bobek wrote. “At that level, as incidentally EUIPO itself recognizes, the moral judgment on the vulgarity of an expression matters.”

Bobek argued that EUIPO failed to meet standard for refusing the mark, calling it undeniable “that the film was a great success in German-speaking countries, apparently without stirring much of a controversy as to its title; that the film title was duly authorized and released for screening to younger audiences; and that the positive perception of the film can also be evidenced by its incorporation into the learning program of the Goethe-Institut.”

Such evidence is not conclusive either, Bobek added, but it does show that “much more convincing arguments would have to be provided by EUIPO in order for it to conclude that, in spite of the various bodies of the German-speaking public evaluating the expression as not raising eyebrows in the minds of that public, an eponymous trade mark still cannot be registered on account of it being an affront to the accepted principles of morality caused to exactly the same public.”

Bobek’s opinion is not binding on the Court of Justice, which will now begin is own deliberations in the case. Should it side with the filmmakers as well, the court will be following in the steps of colleagues across the Atlantic. Just last week, the U.S. Supreme Court sided with designer Erik Brunetti who had been barred by federal authorities from registering the name of his clothing line, FUCT.  

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