This case dealt with the question if the registration of the figurative mark “BREXiT” is allowable. The question was if Art. 7 I b and Art. 7 I f EUTMR was infringed. Furthermore, it was questioned if the figurative trademark “BREXiT” infringes public order or recognized principles of good custom and contains sufficient distinctiveness.
The Court rejected an infringement of the public order and of the recognized the principles of good custom. The Court reasoned that the “Brexit” was a sovereign, political decision which was legally made and which does not have any negative moral connotation. The figurative trademark “BREXiT” is neither an instigation to crime nor an emblem for terrorism nor a synonym for sexism or racism. The fact that part of the British public might have been annoyed by a disputed, democratically made decision is not sufficient for determining any infringement.
The Court did, however, clarify that the term “Brexit” at the time of the application was very popular as it was a meaningful, historic and political event, so that the relevant consumers would not bring this term into connection with goods or services of a specific distributor but rather with the political event that Great Britain decided the leave the European Union. The conclusion is that the term “Brexit” can only gain distinctiveness when consumers are sufficiently confronted with it in trade, however, this is currently not the case.
Therefore, the application “BREXiT” was rejected.
EUIPO Enlarged Board of Appeal, Case number: R 958/17-G
June 18, 2020