13 Jul “Corona Party” case
“Corona Party” case : when trademark law meets morality
To be valid, a trademark must meet several criteria. It must relate to a lawful sign, i.e., one that does not offend morality or public order… These notions are by nature changing since they are linked to a societal context. Characterizing an infringement can therefore be complicated.
The European Union Intellectual Property Office recently had to rule on this issue when examining the validity of the trademark applications “Corona party” or “After Corona party”.
The latter were intended to cover services related to entertainment, especially those of discotheques or more generally related to the organization of receptions and parties. The Office refused the publication of these trademarks considering that, not being related to the fight against Covid 19, they would offend the sensibility of European consumers, many of whom have been affected by the pandemic. The Office adds that “it does not take much imagination to imagine that consumers who have lost loved ones to the pandemic and are then confronted with posters, radio/TV spots, etc. announcing an “after corona party” could find this shocking or offensive”.
Although the Office does not mention it, it would also have been possible to question the distinctiveness of such signs, insofar as the expression CORONA PARTY is already used to refer to parties between infected persons. Therefore, the Office could have considered that the signs were not arbitrary but descriptive of the services offered.
It is not the first time that individuals seeking to “surf” on current events have had their applications refused by offices. For example, INPI refused the registration of the trademark application “Les sans dents” because it was likely to infringe public order. (The Court of Appeals held that “the sign ‘les sans dents’ (No tooth people) will be perceived […] as an incitement to contravene principles essential to the proper functioning of society or as an offense to a part of the public concerned”).
It should be reminded, however, that the risk of offending public order and morality must be real to justify a refusal. It must therefore not be abstract or merely plausible, as the Court of Justice of the European Union recently recalled in a decision entitled “Fack ja Göhte”, insofar as the mere mention of coarse language did not validly ground a refusal. In this case this trademark referred to a film trilogy that had not aroused any reaction upon its release and had even been authorized for educational purposes.
The decisions cited: EUIPO, Examination Division, November 25, 2020, Registration number: 018213865 ; EUIPO, Examination Division, November 25, 2020, Registration number: 018213866 ; CJEU, February 27, 2020, Case C-240/18.