What more than 7 million viewers did not find immoral is not a violation of moral values: the European Court of Justice has annulled the previous rulings against the trademark registration of ‘Fack Ju Göhte’ .
‘Fack Ju Göhte’ immoral in the lower instances
The European Court of First Instance (CFI) also confirmed this decision at first instance (ref. T69/17) – we reported: “Fack ju Göhte” today before the CFI: humour or immorality?
EuGH annuls judgements of the lower instances
Today’s judgment of the ECJ annuls the judgment of the ECJ (Case T69/17) and also the decision of the Board of Appeal against the trade mark registration. As the Advocate General already assessed in his Opinion, the ECJ does not see any violation of morality in the film title and refers to the right of expression in trademark law.
The highest European Court explained that, in particular, the examination carried out regarding the perception of the trade mark applied for by the relevant public in the lower instances was erroneous. Although the Board of Appeal had assessed the reputation of the film and film title ‘Fack Ju Göhte’ , it took the view that the use of the insult ‘Fack Ju’ as a film title did not indicate its social acceptance. “Fuck you” was offensive and immoral and would also be perceived as an insult, not relevantly altered by the addition of “Göhte”, especially since the disputed film title did not describe the content of the film.
Since more than 7 million German viewers saw this film
The ECJ contradicted this argumentation. For the examination of immorality it is not necessary for the title of a film to describe its content, the court stated. Although the success of a film does not automatically prove the social acceptance of its title, it is at least an indication of such acceptance. And since more than 7 million German viewers watched the film ‘Fack Ju Göhte’ in cinemas, obviously without being disturbed by the film title, and since this film was even approved for young viewers, it could be assumed, according to the ECJ, that ‘Fack Ju Göhte’ was not perceived as morally reprehensible by the general German-speaking public.
Although the term “Fack Ju” could be associated with the English expression “fuck you”, the Court stated, the sensitivity could be much greater in the mother tongue than in a foreign language. Moreover, the title of the comedy in question – to which there were other sequels – and hence the mark applied for consisted not only of that English expression as such but also of its phonetic transcription into German, supplemented by the element ‘Göhte’.
It follows from all this that ‘Fack Ju Göhte’ is not perceived by the general German-speaking public as an infringement of fundamental moral values and norms of society, the ECJ ruled and set aside the judgments against the trademark registration of the previous instances.
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Sources:
Judgement of ECJ Fack Ju Göhte EU:C:2020:118
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