It's evident that Vladimir Putin, the Russian President, has divided opinions like few others. Therefore it seems inevitable that he would become a focal point in a trade mark dispute.

A trade mark application

The matter itself played out in Europe recently, where a trade mark application was filed at the European Intellectual Property Office ("EUIPO") to register the mark "PUT PUTIN IN". The application, filed in class 25, covered clothing and headgear. The application was filed by two individuals who presumably have no connection with the Russian President - certainly, the message conveyed by the trade mark would suggest that.

A trade mark refusal

The application was refused by the EUIPO on interesting grounds.

Principles of morality and the reasonable consumer

The grounds for refusal were that the application contravened accepted principles of morality. The EUIPO's reasoning was as follows:

  • The EUIPO is required to apply the test of the reasonable consumer, one who has a normal level of sensitivity and tolerance.
  • The EUIPO is of the view that this reasonable consumer would understand the trade mark PUT PUTIN IN (prison, one assumes) to mean 'lock Putin up.'
  • The reasonable consumer would be of the view that a trade mark carrying such a message is hateful, racist and discriminatory and would therefore be offensive.
  • Therefore, registration of the application should not be allowed.

The EUIPO's reasoning is that the trade mark is contrary to morality because it capitalises on the Russian invasion of Ukraine. An invasion that has led to terrible consequences, and that the trade mark takes advantage of a tragedy for commercial purposes.

Comment in IPKat

IPKAT makes some interesting observations about difficult trade mark applications, such as the one for PUT PUTIN IN:

  • The concept of accepted principles of morality refers to the fundamental moral values and norms to which society adheres at a given time ( as seen in the judgment of Constantin Film Produktion v EUIPO C-240/18P). These values and norms may change with time.
  • In order to determine what is deemed morally acceptable at any given time, it is necessary to consider the social context - cultural, religious or philosophical diversities.
  • It is also necessary to consider how the public perceives the trade mark. Mere bad taste is not enough – in order to be refused, the mark must be contrary to the prevailing moral values and standards of society.
  • Although there is no actual reference to the war in the mark, the average consumer would probably understand that the war is the reason why Putin should be 'put in'.
  • That freedom of expression is guaranteed by Art. 11 (1) Charter of Fundamental Rights of the European Union.

What about non-distinctiveness?

The IPKat posting ends with an interesting suggestion that the EUIPO could have avoided all of this fuss about morality by simply refusing the application on the basis of non-distinctiveness. The argument would be that PUT PUTIN IN is likely to be perceived as a mere political message rather than an indication of origin (trade mark).

Looking back

The EUIPO's response to the news in 2022 that Russia had invaded Ukraine resulted in the following, inter alia:

  • An end to all co-operation with Rospatent, the Russian Federal Service for Intellectual Property, the Eurasian Patent Organisation (EAPO) and Belarus.
  • Greater cooperation with the Ukrainian National Office for Intellectual Property and Innovations.
  • An IP assets freeze for people on a sanctions list.
  • A refusal of any new EU trade mark or design registrations (or designation) to specified persons.
  • A daily screening of all incoming files for designated persons.

One can't help but wonder whether a bit of war fatigue has set in.

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