The desired registration of the Union trademark ‘Bavaria weed’ was refused. The CJEU has now upheld the refusal of the trademark because it is contrary to public policy – even though it was applied for cannabis use for therapeutic purposes.
Actually, there signs in the EU to a certain relaxation on the subject of cannabis for therapeutic purposes. There was a general trend in the Union towards legalising the therapeutic use of cannabis, argued the trademark applicant of the Union trademark ‘Bavaria weed’, substantiating this with the European Parliament resolution of 13 February 2019 on the use of cannabis in medicine (2018/2775[RSP]; OJ 2020, C 449, p. 115).
In any event, the applicant submitted that therapeutic use had now become legal in several Member States, including those in which an English-speaking public resided.
Therefore, the trademark applicant reacted with incomprehension when the desired trademark registration of the sign Bavaria weed (for therapeutic use) was refused by the European Trademark Office (EUIPO) in 2018. This was because the trademark registration was refused because it promoted, advertised or at least trivialised the use of marijuana and was therefore contrary to public policy (Article 7(1)(f) of Regulation 2017/1001).
Bavaria weed trademark refused: violation of public order
The trademark applicant appealed against this decision before the European Court of Justice (CJEU) – which, however, now confirmed the decision of the EUIPO: the trademark Bavaria Weed violates public order, the CJEU ruled (12 mai 2021, EU:T:2021:259).
The trade mark applicant argued in vain that since the trademark was registered for therapeutic purposes, it could not be contrary to public policy.
But the court disagreed. When examining whether a trade mark is contrary to public policy, not only the public to which the claimed goods and services are directed (doctors, pharmacists, patients) must be taken into account, but also all persons who happen to encounter this trade mark in everyday life – and who may take offence at it.
Other aspects such as legal texts and administrative practices, public opinion as well as the previous reaction to comparable signs were also to be taken into account – this had already been decided by the ECJ in the case of the trademark ‘Fack Ju Göhte’. However, in this case, the ECJ overturned the previous rulings against the trademark for infringement of moral values.
Weed is not cannabis
Moreover, the trade mark application does not contain the word cannabis, but the term “weed”. The fact that the term “weed” has several meanings, such as “weed”, “tobacco” or “weakling” is irrelevant, the CJEU emphasised, since according to settled case law it is sufficient if a term is excluded from registration in only one of its meanings.
The term ‘weed’ in its colloquial meaning referred to marijuana – recreational use, the joint, the CFI summarised. It was also a synonym for “pot”, “grass”, “herb”, “boom” or “dope”, or in German “Gras”. Thus, as the EUIPO had rightly found, the sign drew attention to the use of marijuana, promoted it and advertised or at least trivialised it, although this substance was prohibited and illegal.
Cannabis is not banned in the whole EU, but it is banned in parts of the EU. And relevant publics – the court cited Sweden and Finland – would perceive the disputed mark as indicating that the services in question concerned a prohibited and illegal substance.
The court emphasised that it did not matter that the Bavaria weed trademark applicant manufactured and marketed pharmaceuticals and definitely did not promote drug use. This was because it was not the conduct of the trade mark applicant that was decisive for establishing the infringement of public policy, but exclusively the perception of the sign in question by the relevant public.
Look at case law: ECJ on EU marketing of cannabis
Only a few months ago, in November 2020, the highest European court (ECJ) issued a ruling on cannabis: Accordingly, a Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State if it is obtained from the whole cannabis sativa plant and not only from its fibres and seeds (EU:C:2020:938).
However, such a ban could be justified by the protection of public health, the ECJ had added, but must then really serve to protect public health.
In the case of the disputed Bavaria Weed trademark application, the situation was completely different, the CJEU said. Cannabis was a term for which therapeutic use was at least an option, whereas the term ‘weed’ referred to marijuana as a narcotic and not to a CBD without psychotropic effects.
Not every infringement is against public policy
Finally, the CJEU acknowledged that not every infringement of a law necessarily constituted a breach of public policy. For this to be the case, the infringement must affect an interest which the member states concerned regard as fundamental according to their own system of values.
This was the case in the present case, the CJEU ruled. In particular, the therapeutic use of cannabis remains a controversial issue, despite the cited resolution of the EU Parliament of 2019. The EU legislator had not enacted any legislation on the therapeutic use of cannabis, the court emphasised. Ultimately, the association of the term weed with services of a therapeutic nature ran the risk of trivialising or even officially endorsing the use of this term.
CJEU: Cannabis in principle contrary to public policy?
The CJEU therefore dismissed the action and confirmed the refusal of the trademark on the grounds of public policy.
In doing so, the CJEU ruled in the same way as 2 years ago (in December 2019, T-683/18), when the court also refused the trademark registration of CANNABIS STORE AMSTERDAM – also on the grounds of being contrary to public policy. However, this mark claimed goods and services in Nice classes 30, 32 and 43 (food, drink and services for providing food and drink to guests).
The situation was different with the Bavaria Weed trademark, for which only goods and services in the field of cannabis therapy were claimed – but in vain, anyway.
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