Thursday, 6 October 2011

Trade marks and public policy

The General Court has also decided that, as a trade mark, PAKI is contrary to public policy or to accepted principles of morality: T-526/09, PAKI Logistics GmbH v OHIM. The court remarked that the word was a racist expression and therefore unacceptable as a trade mark. This notwithstanding that the applicant is a reputable German logistics company and the mark is used in the form PAKi. (I can see the connection between the PAK element and logistics - and they have been around since 1974.) Pakistan, incidentally, is called Pakistan in German.

For those unfamiliar with English racist slang, the expression was commonly used, is used less often now, with a considerable measure of ignorance as well as malice to denote just about anyone from the Indian sub-continent. I don't believe it was, or is, used exclusively with malice, and it can sometimes be intended neutrally - we have an "Indo-Pak" restaurant not far away from home, although there is a big difference between using the term for a whole people and using it for an individual. Often people use expressions like this with the best of intentions, unaware of the hurt they cause.

The court also noted that protection against discrimination is a fundamental value of the EU, provided for in Articles 2 and 3, paragraph 3 of EU Treaty and Articles 9 and 10 of the Treaty on the Functioning of the European Union, and Art.21 of the Charter of Fundamental Rights of the European Union.

Well, the measure of what should be acceptable is easy enough: if people don't like it, we should all respect their wishes, not use the word, and not allow it to be registered as a trade mark. The court was presented with evidence that the word is used in the Pakistani community, and is not necessarily offensive to them: but even if the law is protecting the sensibilities of the chattering classes, perhaps that's reason enough to refuse registration. But it does seem an unfortunate side-effect of the Community trade mark system that a German company should find its name unprotectable at EU level.

Because it involves the same provision of the regulation, and because I have only recently caught up with it, and because of my visit to Russia last weekend, I'll also add a reference to Case R 1509/2008-2 Couture Tech, a decision of the OHIM Second Board of Appeal in an appeal against a decision to refuse registration of the old Soviet Union symbol of hammer, sickle, globe, red star, and "workers of all countries, unite!" in 15 languages (none of them English, rather like a General Court judgment). The board noted that the Soviet Union - which the board seems to treat as interchangeable with the Soviet Communist Party, perhaps rightly - was

... a totalitarian state that massively violated human rights, under the leadership of the Soviet Communist party, committed crimes against humanity, including summary executions, torture, sending innocent people to labour camps, involuntary settlement and stripping of citizen’s rights. It is commonly  accepted that the ethnicity-targeted population transfers in the Soviet Union led to million deaths due to inflicted hardships. For example, 10 percent of the entire adult Baltic population was deported or sent to labour camps, as can bee seen from Wikipedia printouts.
Allow me in passing to exclaim - "Wikipedia???". But the historical facts are beyond dispute, even if there might be arguments about the details, and the Board's conclusion that the trade mark the subject of the application would cause offence in countries which suffered under the Soviet regime, some of which ban such signs as some countries do Nazi insignia.

Good call: but what baffles me is why anyone would think this a suitable sign to use as a trade mark in the first place?

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