The concept of being contrary to public policy or accepted principles of morality can be found in the area of regulations on the refusal to register or invalidate trade marks. Article 7(1)(f) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trademark (EUTMR) stipulates that marks that are contrary to public policy or to accepted principles of morality shall not be registered. An EU mark is also subject to cancellation if registered in violation of this provision (Article 59(1)(a) of the EUTMR). An identical regulation can be found in national legislation, which among the absolute grounds for granting a trade mark protection right provides for contradiction with public policy or accepted principles of morality (Article 1291(1)(7) of the Industrial Property Law of June 30, 2000).
Although the concept of contradiction with public policy or accepted principles of morality has taken root in the law, problems have been encountered in its interpretation. The legislation does not provide a definition of what is meant by “public policy” or “accepted principles of morality” nor does it explain the relationship between the two concepts. Some guidance was provided by EU case law, but there was a need to eliminate uncertainty about the essential aspects of evaluating the provision.
With help in this regard came another common practice, CP14, created by the Intellectual Property Offices in member states and user associations actively cooperating under the established European Union Intellectual Property Network (EUIPN). This is a further step towards the convergence of trademark practices. The CP14 Common Practice on trade marks contrary to public policy or to accepted principles of morality will begin to be implemented in Poland on July 19, 2024. Below is a link to the document:
Common understanding of public policy
Public policy can be understood as a set of fundamental norms, principles and values of societies in the European Union at a given point in time. It includes, in particular, the universal values of the European Union, such as human dignity, freedom, equality and solidarity, and the principles of democracy and the rule of law, as proclaimed in the Charter of Fundamental Rights of the European Union (CFREU). Its content should be ascertainable from reliable and objective sources.
Common understanding of accepted principles of morality
Accepted principles of morality refer to the fundamental moral values and standards accepted by a society in the European Union at a given time. In particular, accepted principles of morality comprise the fundamental moral values and standards accepted by the social consensus that are common to the EU, that is, to all the Member States; as well as those that are only applicable to each MS, at national level.
From the wording established in provisions, it can be concluded that this absolute ground includes two different concepts: trade marks contrary to public policy and trade marks contrary to accepted principles of morality. Whilst the concepts of public policy and accepted principles of morality may, in certain cases, overlap, the finding that a sign is only contrary to public policy or only contrary to accepted principles of morality is enough to refuse the sign on the basis of relevant regulations.
In Common Practice CP14 a non-exhaustive list of groups of signs, containing illustrative examples, that could fall under assessment of this ground for refusal has been created, namely:
· Signs including/related to illicit substances;
· Signs referring/related to public safety risks;
· Signs with a religious or sacred nexus;
· Signs including/related to vulgar elements (swear words, offensive gestures, etc.);
· Signs including/related to obscenity, sexuality and innuendo;
· Signs disparaging or slurring a particular group;
· Signs referring/related to criminal activities, crimes against humanity, racist and totalitarian and extremist regimes, organisations and movements;
· Signs referring/related to well-known tragic events;
· Signs including/related to historical figures, national/EU symbols and/or personalities held in high esteem
It's time for some interesting examples of signs that have been indicated in Common Practice CP14 as those that raise concerns about compliance with public policy or accepted principles of morality.
Very important!
The assessment of whether a sign is contrary to public policy, accepted principles of morality or both will always be made on a case-by-case basis, considering the normal level of sensitivity and tolerance of the relevant public in the jurisdiction concerned as well as all the circumstances specific to the Member State(s) and the particular case.