Case T-232/10

Couture Tech Ltd

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Application for a Community figurative mark representing the Soviet coat of arms – Absolute ground for refusal – Whether contrary to public policy or accepted principles of morality – Article 7(1)(f) of Regulation (EC) No 207/2009)

Summary of the Judgment

1.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks which are contrary to public policy or to accepted principles of morality

(Council Regulation No 207/2009, Arts 7(1)(f) and 7(2))

2.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks which are contrary to public policy or to accepted principles of morality

(Council Regulation No 207/2009, Art. 7(1)(f))

1.      It is apparent from Article 7(1)(f) and (2) of Regulation No 207/2009 on the Community trade mark that a mark must be refused registration if it is contrary to public policy or to accepted principles of morality in part of the European Union, and that part may, in some circumstances, be comprised of a single Member State.

The public interest underlying the absolute ground for refusal laid down in Article 7(1)(f) of Regulation No 207/2009 is to ensure that signs which, when used in the European Union by a public composed of consumers of the goods and services which they designate, would be contrary to public policy or to accepted principles of morality are not registered. Under those circumstances, the existence of the absolute ground for refusal laid down in Article 7(1)(f) of that regulation must be assessed with reference to the perception of the average consumer, within the European Union, of the goods and services in respect of which registration is sought. First, consumers who are within the European Union are, by definition, within a Member State. Second, signs likely to be perceived by the relevant public as being contrary to public policy or to accepted principles of morality are not the same in all Member States, inter alia for linguistic, historic, social and cultural reasons. Accordingly, the perception of whether or not a mark is contrary to public policy or to accepted principles of morality is influenced by the circumstances of the specific Member State in which the consumers who form part of the relevant public are found. Consequently, it must be held that, in order to apply the absolute ground for refusal laid down in Article 7(1)(f) of Regulation No 207/2009, it is necessary to take account not only of the circumstances common to all Member States of the European Union, but also of the particular circumstances of individual Member States which are likely to influence the perception of the relevant public within those States.

(see paras 26, 29-34)

2.      The figurative sign representing the Soviet coat of arms, for which registration as a Community trade mark is sought in respect of goods and services in Classes 3, 14, 18, 23, 26 and 43 of the Nice Agreement, is contrary to public policy or to accepted principles of morality in Hungary under Article 7(1)(f) of Regulation No 207/2009 on the Community trade mark.

It is apparent from Article 269/B of the Hungarian Criminal Code, as interpreted by legal writers and set out in administrative practice, that the Hungarian legislature considered it necessary to ban certain uses of ‘symbols of despotism’, including the hammer and sickle and the five-point red star. That ban, which also covers the use of those signs as trade marks, is accompanied by criminal penalties. It is not disputed that the ban on the use of ‘symbols of despotism’ as a trade mark implies that such symbols are perceived as being contrary to public policy or to accepted principles of morality in Hungary. Nor is it disputed that the mark applied for is a reproduction of the coat of arms of the former USSR and that it includes, inter alia, a hammer and sickle and a five‑point red star.

Under those circumstances, the use of the mark applied for as a trade mark would be perceived by a substantial section of the relevant public in Hungary as being contrary to public policy or to accepted principles of morality within the meaning of Article 7(1)(f) of that regulation.

(see paras 51, 59-62)