Jeberaj Kenneth, trading as Screw You, applied to register
'screw you' as a trade mark in Europe for a wide variety of goods
and was denied by the Office for Harmonisation in the Internal
Market (OHIM), the body which is responsible for European community
trade marks.
Kenneth appealed to OHIM's ultimate authority, the Grand Board
of Appeal, arguing that the initial decision had painted the phrase
as being more offensive than it actually was.
Kenneth sought to protect the phrase as it applied to products
as diverse as sunglasses and sex toys, spectacle cases and breast
pumps as well as alcoholic beverages, condoms and sports
equipment.
The original application had been turned down on the basis that
the phrase did not comply with an article of the Community Trade
Mark Regulation which bans marks which are contrary to "accepted
principles of morality". The examiner in question equated the word
'screw' to the word 'fuck' and said that the term was
insulting.
In his appeal, Kenneth argued that the two words were not
equally offensive, and that the phrase 'screw you' was in common,
acceptable use in English, as demonstrated by its use in Eastenders
and The Simpsons.
The Board accepted that the two terms were not equally
offensive, and that public swearing was more acceptable now than it
had been 30 years ago, but that the liberties extended to artistic
expression were not necessarily to be extended to commercial
expression. The phrase 'screw you', the Board concluded, was
definitely a profanity.
The Board ruled, however, that there were some contexts in which
the profanity would not present a problem. The trade mark would be
permitted in relation to the goods proposed by Kenneth that would
be sold in sex shops, such as sex toys, artificial breasts and
breast pumps.
The Board also said that the trade mark could provide protection
for condoms even outside of sex shops, since any purchaser would be
unlikely to be offended by the term. The Board rejected protection
in relation to alcoholic beverages, which had been previously
granted in the UK.
