In 2009 Federico Cortés del Valle López registered a figurative mark containing the words ¡Que Buenu Ye! HIJOPUTA to the OHIM. López wanted to use this figurative mark to sell aguardiente, a liquor. The OHIM refused the registration on the basis of Article 7 (1) under f of the Community Trademarks Regulation. This Article allows the OHIM to refuse the registration of trademarks that are contrary to public policy or to accepted principles of morality. The reason for the refusal was the word hijoputa, which, freely translated, means "son of a whore". The Board of Appeal of the OHIM also considered the word objectionable and held that the public in the European Union would take it as "intrinsically hurtful and shocking". López then appealed to the EU General Court, which ruled as follows.
Assessment of the EU General Court
To answer the question as to who exactly would be hurt and shocked by the trademark registration, the Court began by identifying the relevant public. It is possible that this public is made up by the inhabitants of one Member State, rather than the whole population of the European Union. In this case it will be the Spanish public, because the words in the figurative mark are Spanish (the phrase que buenu ye is Asturian dialect for the words qué bueno está in Spanish). The word HIJOPUTA is printed larger than the other words and is clearly dominant; the Court therefore concentrated on the assessment of this word.
The Court consulted a dictionary and found that the definition of hijoputa is "(Vulgar) Bad person. Offensive". The average consumer (who apparently has an average moral conscience, as we will see below) will regard this expression as "very shocking and deeply improper".
Arguments of López
López did not dispute that hijoputa as such has an offensive meaning. However, his first argument was that people would find the use of the term on a liquor bottle amusing. The Court held that even if the word may not offend part of the public, this does not mean that the trademark can be registered. For an assessment on the basis of Article 7 (1) under f, it is necessary to look at the general public, which consists of "reasonable persons having an average degree of tolerance and sensitivity".
López' second argument was that he had already sold hundreds of thousands of bottles without having received any complaints from consumers or consumer organizations. This argument was considered irrelevant by the Court, because what matters is the intrinsic meaning of word has (as appears from the dictionary) for the relevant public. This meaning is not influenced by a lack of consumer complaints.
Furthermore, the Court held that the existence of other brands that may also be offensive, like DE PUTA MADRE (which means "great, fantastic" in colloquial speech, but literally means "your mother is a whore"), CABRON 49 (which means bastard in certain cases) and BASTARDO BIANCO, is not relevant, because these brands are very different from the registration of hijoputa. The Court also remarked that an earlier registration of HIJO DE PUTA had been refused as well. Furthermore, the Court does not take earlier registrations into account when reviewing a decision by OHIM to refuse registration. Still, it is somewhat odd that brands such as DE PUTA MADRE or FUCKING HELL (or FCUK!) can be registered, while HIJOPUTA cannot.
Freedom of Speech
López had also relied on his freedom of speech (Article 10 of the ECHR), but the Court made short shrift of this argument. The Court reasoned that López is free to use the brand for his liquor; it is only impossible to register it.
It is an interesting choice to rely only on art. 10 ECHR; perhaps López could also have invoked art. 11 of the Charter of Fundamental Rights. The conclusion may not have been different, but the reasoning could have been more extensive and we could get a look at how the Court deals with the two human rights regimes. After all, article 52 sub 3 of the Charter determines that in principle, the Charter has to be interpreted along the lines of the ECHR. However, the last sentence opens the possibility to interpret human rights law more extensively than the ECHR: "This provision shall not prevent Union law providing more extensive protection."
First published in the Kennedy Van der Laan newsletter - March 2012
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