General Court considers that the expression “Fucking awesome” lacks distinctiveness

Case T-178/22

In October 2020, FA World Entertainment applied to register the word “Fucking awesome” as a European trade mark (international registration designating the EU) based on two registrations in the U.S.

When analysing the trade mark application, the EUIPO considered that the mark lacked distinctive character and was contrary to moral principles.

The Board of Appeal, however, did not consider the mark to be contrary to moral principles as it did not find it offensive, but confirmed that it lacked distinctiveness – hence refused registration.

The General Court dismissed the appeal brought by FA World Entertainment, thus upholding the decision of the EUIPO.

The GC considered in particular that the expression “Fucking awesome” would be understood as a slightly vulgar way of referring to the high quality of the goods and services, thus serving as a slogan or promotional message rather than serving the purpose of a trade mark (indicating origin).

While EU Courts generally accept that slogans can be trade marked if they are original or trigger a cognitive process (hence, if they are distinctive enough and thus can help distinguish goods and services on the market), the GC considered that this was not the case here, whether the words were taken individually or in combination. The Court further stated that the mere fact that the sign is affixed to the goods does not mean that the public will understand it as an indication of commercial origin rather than a purely promotional message.

This recent case shows us once again that it is difficult to register slogans as trade marks. Here, while the swear word in the slogan turned out to be a non-issue, the purely promotional character of the sign led to its lack of distinctiveness, hence to the registration being refused.