Inconsistencies in European trade mark law: the public policy and morality exclusions

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JournalIntellectual Property Quarterly
DateAccepted/In press - 8 Oct 2020
DatePublished (current) - 7 Dec 2020
Issue number4
Volume2020
Number of pages28
Pages (from-to)271-298
Original languageEnglish

Abstract

European decision-makers have not adopted a uniform approach to the interpretation of the public policy and morality exclusions. This has resulted in a worrying degree of unpredictability, with similar signs being refused registration in some instances while being granted in others. In the search for consistency, commentators have thus far focused on one controversial aspect of the exclusions: the role that the protection afforded by freedom of expression under art.10 ECHR ought to play in trade mark registration. This article argues that this is only one of several sources of inconsistency that can be identified in the case law. Current approaches are also split as regards the correct interpretation of these grounds for refusal, including: (a) their conceptual boundaries; (b) how to correctly define the relevant public; and (c) their applicable legal test(s). It is only if decision-makers address these additional sources of inconsistency moving forward that it will be possible to harmonise this area of law. This is a timely endeavour in light of the recent decision in "Fack Ju Göhte", where the CJEU has ruled on the morality exclusion for the first time.

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