One of the most controversial grounds for refusal to register a trademark is its inconsistency with generally accepted principles of morality and public order.
The specified limitation regarding the granting of legal protection by a designation is enshrined in the Law of Ukraine “On the Protection of Rights to Marks for Goods and Services.” The main idea of such a norm is to prevent the registration of trademarks that have a negative meaning for society or that are contrary to generally accepted and fundamental norms of morality and public order.
However, the essence and content of such concepts as “social morality” and “public order”, firstly, are not stable and change under the influence of the development of society, secondly, they can be perceived differently by each person, including Ukrpatent experts.
It is obvious that the concept of social morality is defined through other fundamental concepts (good, evil, love), which have an evaluative character, which can create a different attitude of one or another person to the same work of art, literary work or brand names, depending on her internal ideas about moral values, personal experience and level of education.
However, in general, the grounds for recognizing TM as inconsistent with the principles of social morality in terms of their content can be conditionally divided into two groups:
- ● designations use offensive words, expressions or images;
- ● designations may affect the interests of the public and contradict public order.
In our company’s practice, we recommend that clients avoid ambiguous expressions or images that could be misunderstood by the general public, even theoretically, including being offensive. Although the motives and goals of applicants who use provocative designations for their brand to attract the attention of potential consumers and create so-called “black” PR for the product are understandable.
Sometimes our perception of this or that designation is somewhat different from the view of Ukrpatent experts.
For example, we recently received a certificate of registration of the trademark “MAKNY DRUGA”. However, the provision of legal protection to this, at first glance, neutral word combination was preceded by the previous refusal of the Ukrpatent, on the grounds of inconsistency with public order, principles of morality: TM can be perceived as a call to violent actions against a certain person, due to the presence in TM of the allegedly slang word ” makny” in the sense of “humiliate, drown”.
However, if one perceives such a trademark in the context of the brand of goods for which it was claimed, it becomes obvious that there is no “violent” connotation.
Yes, the owner of this designation – Mr. Plekhanov, is the author of a fairly successful startup selling tea through social networks, in particular Instagram. The peculiarity of this tea is the original pathetic tea holders, which are made in the form of figures of people immersed up to the waist in a cup with a drink, while the customer can order such a bag with a photo of any person, in particular his friend, close person or colleague.
So, after persuading the expert to look at this trademark from this angle, Lex Intels specialists managed to successfully overcome the refusal of the Ukrpatent and register the so-called “immoral” brand, and our client finally received the long-awaited certificate for his trademark.
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