Wednesday 7 September 2011

The Oracle of Munich - Predicting the Public Perception

I just came across the decision 27 W (pat) 554/10 in an appeal against the refusal of a trademark registration. The trademark contained the abbreviation RCQT and parts of a sign of military origin and was refused as offending the public order and morality (§ 8 II Nr. 5 of the German Trademark Act).

Apparently, the letters RCQT stand in some obscure rightist circles for "reconquista" and are used in anti-islamic contexts. However, it is clear that rest the general public will not find anything offending in these four letters and the preception of the latter is what usually counts in the trademark procedure.

Whilst fully approving the decision to refuse the registration, the reasons therefore are fairly interesting to read. The pertinent case-law says that the trademark registration should be refused if the trademark is suitable for offending the sense of morality of a considerable part of the public. The senate argues that the public perception does not depend on the perception of the majority in a calculatory sense. Rather, the act of registering the trademark would increase the fraction of the public feeling disturbed by the trademark.

This reasoning appears to be fairly skewed to me because we all have learned that the public preception is a question of fact which may be proven by polls and the like for the actual registration date and/or the past. When the office is trying to predict how the public perception will develop and reject the application based on this prediction, it leaves the principle of objectivity, which is at the basis of good governance.

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