RE: [soac-mapo] GAC proposal

["Vanda UOL" <vanda@xxxxxxxxxx>]

I am aware of several legislations around ( I‘ve been president of Brazilian
Patent Office ) but my point is: 

Is there only one way in this world to define what is morality grounds?
This is to be defined by each country / each culture… common grounds? The
world never reached such thing

Best

 Vanda

 

From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf
Of Philip Sheppard
Sent: Monday, August 09, 2010 4:51 AM
To: soac-mapo@xxxxxxxxx
Subject: [soac-mapo] GAC proposal

 

Allow me to repeat an earlier posting to this list in which I provided the
link to the way the EU trade mark office (multi lingual, multi script)
handles this issue.

Is this not the "least worst" model?

Philip

 

  _____  

 

Most trade mark office examine trade marks on morality grounds (it is called
one of the absolute grounds for refusal).

By way of interest I paste below the guidelines to the examining officers in
the EU trade mark office ( an interesting example as the issue of meanings
in all EU languages is taken into account).

I note that under these guidelines the following EU trade marks have been
registered suggesting the restriction is not overly severe. I believe .xxx
would sail through. All that is proposed for ICANN is something akin to this
with the examining officer not being a staffer (as in the EU trade mark
office) but a third party. (PS ICANN staff were made aware of all this many
moons ago). 

 

fuck and fun reg no 009220831

fucking hell reg no 006025159  (a light beer from the Austrian village of
Fucking)

xxx gay TV reg no 008793309

jewish vodka reg no 003083664 

        
  _____  


 

-------------------

http://oami.europa.eu/ows/rw/resource/documents/CTM/guidelines/examination_e
n.pdf

7.8.1. Public policy or morality, Article 7 (1) (f) 

Article 7 (1) (f) excludes trade marks from registration which are contrary
to public policy or to accepted principles of morality. Like all other
grounds for refusal, this is a European criterion, irrespective of a looser
or stricter level of morality in different regions of the Community, but
Article 7 (2) remains applicable as to the meanings in different languages
or to the presence of social, political or religious phenomena in different
Member States of the EC. 

It is necessary but not sufficient condition that the use of the mark
applied for would be illegal and prohibited. However, illegality of the use
of the mark is not enough to render it objectionable under Article 7 (1)
(f). 

"Public policy" is the body of all legal rules that are necessary for a
functioning of a democratic society and a state of law. "Accepted principles
of morality" are those that are absolutely necessary for the proper
functioning of a society. Article 7 (1) (f) is thus not concerned with bad
taste or protection with feelings of individuals. In order to fall foul
under Article 7 (1) (f), a trade mark must be directly against the basic
norms of the society. The rationale of Article 7 (1) (f) is to preclude
trade marks from registrations where the grant of a Monopoly would undermine
the state of law. 

Article 7 (1) (f) thus excludes blasphemous, racist or discriminatory
phrases, but only if that meaning is clearly conveyed by the mark applied
for in an unambiguous manner; trade marks that might be considered in poor
taste do not offend against this provision. Article 7 (1) (f) also excludes
all direct references or incitements to commit criminal acts. Furthermore,
Article 7 (1) (f) excludes names of terrorist organizations as they would be
perceived as a direct support for them.. 

There is a clear danger that Article 7 (1) (f) is applied subjectively so as
to exclude trade marks that are not to the personal taste of the examiner
and that should be avoided. To be objectionable the word(s) must have a
clear offensive impact on people of normal sensitivity. 

 

 

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