The evolution of language and signs have always intrigued and inspired me, first as a student of languages and now as a trade mark agent.

In a recent case, the Grand Board confirmed that a trade mark composed of the word “Covidiot” and a jester’s hat may not be registered in respect of games because it is contrary to accepted principles of morality. (Case number R02060/2021-G). Having experienced rejections of words like “Corona” (which would of course have been acceptable before the pandemic), I think few trade mark practitioners will be surprised by this decision. However, I imagine that in the wider world, this case might cause people to wonder where the balance lies between moral concerns, and the need for freedom of expression. To provide context to this, there was an increase in the number of trade mark applications that could be objected to on the basis of this ground for refusal in the wake of the 2020 global pandemic — a trend which led to an increased level of scrutiny and diligent assessment. 

The concepts of “morality” and “public policy” have recently been explored in a co-operation project (CP14) which aimed to harmonise practices about Article (4)(1)(f). In the common practice document, clear lines are drawn between marks merely in “bad taste,” and marks that clearly contravene social values or would cause serious offence to average people by reference to empirical norms. This present case offers a clear case law illustration of how article 4(1)(f) of the EU Trade Mark Directive is to be interpreted which falls in line with the principles outlined in CP14.

Personally, I think this spotlight on words we associate with the pandemic is really interesting. It shows how specific events affect how we perceive signs. The interpretation of a sign may be transformed over a short or a long time. So, a negative association can also be gradually eroded. For example the Jolly Roger is mentioned in the CP14 document as no longer a genuine sign used by pirates and therefore it is not objectionable under article 4(1)(f). So, watch this space and let's see how language (and accompanying trade mark applications) evolve over time.