Judgment;Summary — ECLI:EU:C:2020:118
Date: 2020-02-27
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - successful
Origin: Germany

summary of those pleas in law’. According to EUIPO, that plea corresponds to the first ground of appeal and the Appellant failed to put forward arguments substantiating a breach of the principle of sound administration, beyond the alleged breach of Article 7(1)(f) of Regulation No 207/2009. 106. In my view, the arguments raised by the Appellant in the second and third grounds concern in principle the same issue: the alleged lack of consistency in the decision-making practice of EUIPO, in particular when the contested decision in the present case is contrasted with the outcome reached by EUIPO in the Die Wanderhure case. That claim can in fact be put both ways, either as a breach of the principle of equal treatment (second ground), or, in the case of administrative bodies, as an issue of good administration (third ground). (61) Indeed, the principle of good administration concerns the obligation to state reasons that explain EUIPO’s departure from its previous practice. In this sense, that principle goes logically hand in hand with the principle of equality of treatment because the latter requires reaching similar results in similar situations and different results in different situations. 107. I shall therefore deal with both alleged grounds together. 108. The obligation to state reasons is also set out in Article 75 of Regulation No 207/2009, and in Article 94(1) of Regulation 2017/1001, with the same scope as that of the second paragraph of Article 296 TFEU. (62) The Court has also stated that ‘EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law, including the principles of equal treatment and sound administration’. (63) That means, in particular, that ‘… EUIPO must take into account the decisions previously taken in respect of similar applications and consider with especial care whether it should decide in the same way or not, since the way in which those principles are applied, … must be consistent with respect for the principle of legality …’. (64) 109. The Court further noted that ‘the right to sound administration, in accordance with Article 41(2) of the [Charter] … includes the obligation of the administration to give reasons for its decisions. That obligation … has the dual purpose of enabling interested parties to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the Courts of the European Union to exercise their jurisdiction to review the legality of the decision in question’. (65) 110. The recent statements by the Court just quoted already rebut a number of the arguments made by EUIPO in the present proceedings. First, coherent decision-making certainly does not mean that outcomes must be identical. Nor does it mean immutability or the inability to correct previous mistakes or to make changes in approach and interpretation. It simply means adhering as much as possible to a coherent decision-making approach, such as, in the present case, the criteria and elements to be taken into account when assessing the categories in Article 7(1)(f) of Regulation No 207/2009 and the strictness or lenience with which they are applied. I wish to clearly emphasise: coherence in the approach is something other than identity of outcome. 111. Second, the imperative of coherence in approach and in the criteria to be applied has a procedural consequence: it is, naturally, possible to depart from the previous approach to decision-making at any time, but that departure must be reasoned and coherently explained. 112. It is at this juncture that Die Wanderhure, as well as a number of other decisions of EUIPO quoted throughout this Opinion, sit uneasily with the decision on ‘Fack Ju Göhte’. 113. Die Wanderhure concerned a sign, ‘DIE WANDERHURE’, that was also the name of a German novel and its film adaptation. The examiner found that that sign was ineligible for protection based on Article 7(1)(f) because it included an expression causing offence, the word ‘Hure’ being in the German language a synonym for prostitute and colloquially used to refer to a person with many sexual partners. (66) 114. That decision was overturned by the Board of Appeal. The latter noted that the examiner had limited herself to emphasising the second word component of the sign without commenting on the first one. The Board of Appeal described the content of the novel and the film bearing the same name as the sign applied for and noted their broad popular success. The novel and the film tell a story about a young, wandering woman who provides her services in the 15th century, the relevant service users being clergymen at the Council of Constance. The Board of Appeal noted that that success proved that the public does not take offence at the content of the book or at the title. It further noted that the city of Constance did not have a problem with officially offering special walking tours ‘in the footsteps of the sign applied for’. (67) 115. The Board of Appeal noted that a trade mark is ‘immoral’ ‘if the recipient of the goods, when reading the sign applied for ... is insulted or disparaged or if individuals or groups of people are discriminated against or held up to ridicule’. (68) That was, however, not the case of the sign at issue in that case. (69) Furthermore, ‘it is also possible for a wording which is vulgar according to the dictionary to be meant in a purely humorous way, depending on the context’. The assessment to be conducted under Article 7(1)(f) of Regulation No 207/2009 protects, according to the Board of Appeal, ‘the values of European law as a legal system which protects fundamental and human rights [but is not meant to be] a linguistic rule book for the suppression of swearwords’. (70) 116. In the context of the present case, it was specifically with reference to this decision, and the reasons provided for it, that it was suggested that the overall approach adopted by EUIPO under Article 7(1)(f) of Regulation No 207/2009 was previously indeed rather liberal, and the Die Wanderhure case was considered as a demonstration of that approach. (71) The Appellant stresses in particular that if the term ‘Die Wanderhure’ could be considered as neither shocking nor vulgar despite referring to a woman offering sexual services for remuneration, such a conclusion must a fortiori be reached as regards the sign ‘Fack Ju Göhte’. 117. In the light of those statements, I consider that given the undeniable prima facie similarities between the context within which the sign at issue has been applied for on the one hand and the situation concerned in the Die Wanderhure case on the other, as well as the fact that the Appellant has repeatedly referred to that decision in its submissions, it appears reasonable to expect EUIPO to give (and the General Court to require) a plausible explanation as to the different outcomes in those two situations. 118. In this respect, the General Court stated in paragraph 40 of the contested judgment that the application for the sign at issue and the application made in Die Wanderhure cannot be considered as similar. That was, according to the General Court (referring to the assessment of the Board of Appeal), first, because the sign ‘Die Wanderhure’ described the content of the movie of the same name, whereas that was not the case of the sign at issue here. It was thus not possible, according to the General Court, to deduce from the large success of the film Fack Ju Göhte that the public will recognise the title immediately through the sign applied for and will not be shocked by it. Second, the sign ‘Die Wanderhure’ is, in the eyes of the relevant public, much less shocking. (72) 119. Neither of those explanations convince. 120. First, it is unclear to me how the General Court arrived at the conclusion that, in the Die Wanderhure case, the trade mark was descriptive of the content of the film, while ‘Fack Ju Göhte’ is not. Although that question could be seen as factual, what is fundamentally at issue here is the legal test applied by EUIPO and the General Court when assessing an application for registration of a sign that contains an arguably vulgar expression that corresponds to the title of a successful film (or novel), and when that success inspires public bodies (be it the city of Constance or the Goethe-Institut) to adopt the language used for its own public purposes (sightseeing in one case, language learning in the other). 121. As regards specifically the relevance of the ‘equivalence’ between the sign applied for and the name of a film, I fail to discern, first, why that circumstance should matter at all and, second, how that ‘equivalence’ was assessed. 122. Indeed, even if it were clarified precisely what is meant by ‘a title being descriptive of the content of a film’, it is unclear how the fact that a trade mark corresponds to the content of a movie can as such and of itself enable a given sign to escape the application of Article 7(1)(f) of Regulation No 207/2009. Moreover, the reasoning on this point simply contradicts the overall approach to assessment suggested by EUIPO with regard to ‘Fack Ju Göhte’ (whereby the sign is to be assessed as such, in isolation, as being intrinsically vulgar, irrespective of whether there was or was not an eponymous film), while in Die Wanderhure, exactly the opposite approach was chosen (the sign was assessed in its social context, and the success of the novel and film was used as the key argument for its non-offensive nature). 123. Thus, I note the rather clearly opposing approaches to evaluating factually similar and legally identical situations, without even entering into the (indeed factual) discussion about why a presumably native German-speaking general public, on seeing the trade mark DIE WANDERHURE (73) on goods or (especially) on services, (74) an expression that every German speaker will immediately understand, should as such be much less shocked than those who might start to wonder what ‘Fack Ju Göhte’ is supposed to mean, not having seen the film. 124. I understand that striving for coherence in decision-making practice is a long-term goal, as was also acknowledged by EUIPO at the hearing. Considering the multiplicity of possible factual scenarios with which EUIPO may be faced, that task is certainly not an easy one. Those difficulties can nonetheless hardly be invoked as the reason for lowering or even waiving standards when it comes to explaining the reasons for a decision. 125. Again, it can only be repeated that such an obligation does not mean not being able to arrive at a different outcome in a specific case, if the difference between the cases is properly explained, or altogether changing the interpretative approach, if that departure is announced and explained. The analogy with judicial decision-making in this regard is rather clear, although naturally the standards of reasoning are not set as high. Courts are similarly not prevented from changing their case-law over time, (75) but are obliged to explain a potential change in a given line of case-law. (76) 126. In both cases, the common denominator is equality before the law, but also, from the point of view of the addressee of a decision, its predictability. Even the most prudent operator can hardly plan his overall commercial strategy if, in one case, certain elements are taken into account and the approach to the assessment is, on the whole, rather liberal and permissive, while in factually similar circumstances concerning the application of the same legal provisions to a different case, the same or similar elements are said to be devoid of any relevance, and the overall approach is much stricter. 127. Finally, I certainly acknowledge the specific regulatory context of trade mark law, and the fact that past registrations may be subsequently challenged, including on the basis of an incorrect application of Article 7(1)(f) of Regulation No 207/2009. (77) I still do not see, however, how that argument should favour departing from even the minimal requirement of coherence in administrative decision-making practice, which is indeed a transversal principle applicable to any area of public administration, including trade mark law. 128. In sum, I am of the view that the General Court erred in law when it did not sanction the failure, on the part of EUIPO, to appropriately explain the departure from its past decision-making practice, or to state a plausible reason why the application for the sign at issue had to be decided differently compared to the outcome reached in a similar case which was brought to the attention of EUIPO by the Appellant. V. The form of order sought in the present case 129. By the present appeal, the Appellant asks the Court to annul the judgment under appeal and to order EUIPO to pay the costs. It does not also request the annulment of the contested decision. 130. Nonetheless, pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, and the principle encapsulated therein of judicial economy and the efficiency of proceedings, if a judgment under appeal is set aside, the Court may give final judgment in the matter where the state of the proceedings so permits. 131. I consider that that requirement is fulfilled in the present case. 132. For the reasons set out above in Section A of this Opinion, I suggest that the first ground of appeal is well founded. The General Court erred in its interpretation of Article 7(1)(f) of Regulation No 207/2009, which then translated into a corresponding lack of (relevant) reasoning in the judgment under appeal. Irrespective of the potential conclusions of the Court on the second and third grounds of appeal, if the Court were to uphold the first ground of appeal, the contested decision of the EUIPO Board of Appeal would then also inevitably have to be set aside subsequently by the General Court for the same reasons. 133. In such circumstances, a fresh assessment of the case by the General Court would not be necessary. VI. Costs 134. As provided for in Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. 135. Under Article 138(1) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 136. The Appellant has applied for costs to be awarded against EUIPO. If the Court follows my suggestion as to the outcome of the present appeal, the latter will be unsuccessful. EUIPO would therefore be ordered to pay the costs relating both to the proceedings at first instance in Case T‑69/17 and to the appeal. VII. Conclusion 137. I suggest that the Court of Justice: – Set aside the judgment of the General Court of the European Union of 24 January 2018, Constantin Film Produktion v EUIPO (Fack Ju Göhte), (T‑69/17, not published, EU:T:2018:27); – Annul the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 December 2016 (Case R 2205/2015-5, Fack Ju Göhte); – Order the EUIPO to bear its own costs and to pay the costs incurred by Constantin Film Produktion GmbH both in the proceedings at first instance and on appeal in the present case. 1 Original language: English. 2 ‘Die Religion verspottet, die Laster beschönigt und gute Sitten verderben kann’, Brief der dänischen Kanzlei vom 19. September 1776 an den König von Dänemark, reproduced in Müller, P. (ed.), Der junge Goethe im zeitgenössischen Urteil, Akademie-Verlag GmbH, Berlin, 1969, p. 130. See also Mandelkow, K.R. (ed.), Goethe im Urteil seiner Kritiker: Dokumente zur Wirkungsgeschichte Goethes in Deutschland. Teil I 1773‑1832, Verlag C.H. Beck, Munich, 1975, XXV-XXXII and pp. 41 to 47. 3 OJ 2009 L 78, p. 1. Since replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 4 Judgment of 24 January 2018, Constantin Film Produktion v EUIPO (Fack Ju Göhte) (T‑69/17, not published, EU:T:2018:27). 5 Paragraphs 14 to 16 of the judgment under appeal. 6 Paragraph 18 of the judgment under appeal. 7 Paragraph 19 of the judgment under appeal. 8 Paragraphs 22 to 24 of the judgment under appeal. 9 Paragraph 25 of the judgment under appeal. 10 Paragraph 26 of the judgment under appeal. 11 Paragraph 27 of the judgment under appeal. 12 Paragraphs 28 and 29 of the judgment under appeal. 13 Paragraphs 31 to 32 of the judgment under appeal. 14 Paragraphs 33 to 34 of the judgment under appeal. 15 Decision of the Fourth Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE. 16 Paragraphs 35 to 40 of the judgment under appeal. 17 Paragraphs 42 to 43 of the judgment under appeal. 18 EU trade mark No 6025159 ‘Fucking Hell’, and EU trade mark No 10279644 ‘MACAFUCKER’. 19 In contrast to being addressed to the Member States only when ‘implementing Union law’ (the functional definition of the scope of application), Article 51(1) of the Charter makes the provisions of the Charter applicable to the institutions and bodies of the Union in any of their activities (the institutional definition of the scope of application). 20 See also, by analogy, Opinion of Advocate General Fennelly in Germany v Parliament and Council (C‑376/98, EU:C:2000:324, points 154 and 155). 21 ECtHR, 25 August 2015, Dor v. Roumania (CE:ECHR:2015:0825DEC005515312, § 43 and the case-law cited). 22 ECtHR, 24 February 1994, Casado Coca v. Spain (CE:ECHR:1994:0224JUD001545089, § 35 and the case-law cited). See also ECtHR, 25 August 2015, Dor v. Roumania (CE:ECHR:2015:0825DEC005515312, § 43 and the case-law cited), and ECtHR, 30 January 2018, Sekmadienis Ltd. v. Lithuania (CE:ECHR:2018:0130JUD006931714, §§ 75 to 84). 23 Recital 21 of Regulation 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21). The latter entered into force on 23 March 2016, that is, after the application in the present case was filed by the Appellant on 21 April 2015. See also recital 21 of Regulation 2017/1001. 24 For example, judgment of 20 September 2011, Couture Tech v OHIM (Representation of the Soviet coat of arms) (T‑232/10, EU:T:2011:498, paragraphs 68 to 71). 25 For example, decisions of the Boards of Appeal of 6 July 2006, R 495/2005-G, SCREW YOU, paragraph 15; of 28 May 2015, R 2889/2014-4, DIE WANDERHURE, paragraph 12; of 2 September 2015, R 519/2015-4, JEWISH MONKEYS, paragraph 16; of 14 December 2015, R 1627/2015-4, PICA, paragraph 16; and of 28 June 2017, R 2244/2016‑2, BREXIT, paragraphs 26 to 34. 26 On the link between intellectual property rights and human rights protection, see for instance recently, Geiger, C., and Izyumenko, E., ‘Intellectual property before the European Court of Human Rights’, in Geiger, C., Nard, C.A., and Seuba, X., Intellectual Property and the Judiciary, Edward Elgar Publishing, Cheltenham, 2018, pp. 9 to 90, especially pp. 50 to 62; Ramsey, L.P., ‘A Free Speech Right to Trademark Protection?’, The Trademark Reporter, Vol. 106, No 5, 2016, p. 797. 27 In the present case, freedom of expression has been invoked by the Appellant. But naturally, freedom of expression, as well as other rights and interests that form part of the equation, is not limited to the holders (or possible holders) of the rights conferred by trade mark protection. Indeed, freedom of expression can be also invoked by those wishing to make unauthorised use of a trade mark, for reasons that they consider socially important. See, for example, Geiger, C., and Izyumenko, E. (eds.), ‘Intellectual property before the European Court of Human Rights’, in Geiger, C., Nard, C.A., and Seuba, X., Intellectual Property and the Judiciary, Edward Elgar Publishing, Cheltenham, 2018, pp. 9 to 90, especially pp. 50 to 54, and Senftleben, M., ‘Free signs and free use: How to offer room for freedom of expression within the trademark system’, in Geiger, C., Research Handbook on Human Rights and Intellectual Property, Edward Elgar Publishing, Cheltenham, 2015, pp. 354 to 376. See also Opinion of Advocate General Poiares Maduro in Joined Cases Google France and Google (C‑236/08 to C‑238/08, EU:C:2009:569, point 102). 28 Paragraph 24 of the judgment under appeal. 29 Paragraph 23 of the judgment under appeal. 30 See, for example, Cohen Jehoram, T., Van Nispen, C., and Huydecoper, T., European Trademark Law: Community trademark law and harmonized national trademark law, Wolters Kluwers, Alphen aan den Rijn, 2010, p. 9 et seq. See also Commission Staff Working Paper Impact Assessment accompanying document to the Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark and the Proposal for a Directive of the European Parliament and of the Council to approximate the laws of the Member States relating to trade marks (recast) of 27 March 2013 (SWD(2013) 95 final, p. 5), and Memorandum on the creation of an EEC trade mark of 6 July 1976 (SEC(76) 2462, p. 7). 31 Judgments of 25 January 2007, Adam Opel (C‑48/05, EU:C:2007:55, paragraphs 21 to 25), and of 23 March 2010, Google France and Google, (C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 77 and the case-law cited). See also judgments of 18 June 2002, Philips (C‑299/99, EU:C:2002:377, paragraph 30 and the case-law cited); of 25 March 2010, BergSpechte (C‑278/08, EU:C:2010:163, paragraph 31); and of 22 September 2011, Interflora and Interflora British Unit (C‑323/09, EU:C:2011:604, paragraph 38). See also Werkman, C.J., Trademarks: Their creation, psychology and perception, J.H. de Bussy, Amsterdam, 1974, pp. 4 to 9. 32 Sakulin, W., Trademark Protection and Freedom of Expression: An Inquiry into the Conflict Between Trademark Rights and Freedom of Expression under European Law, Wolters Kluwer, Alphen aan den Rijn, 2011, p. 30. 33 The equivalent provision is to be found at Article 4(1)(f) of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (OJ 2015 L 336, p. 1) and Article 6quinquies B(iii) of the Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised and amended, the latter providing that trademarks covered may be neither denied registration nor invalidated except in the following cases: ‘when they are contrary to morality or public order and, in particular, of such a nature as to deceive the public. It is understood that a mark may not be considered contrary to public order for the sole reason that it does not conform to a provision of the legislation on marks, except if such provision itself relates to public order.’ 34 Hasselblatt, G.N., Community Trade Mark Regulation: A Commentary, CH Beck-Hart-Nomos, Munich, 2015, p. 125: ‘the underlying rationale of the absolute ground for refusal in Art. 7(1)(f) is thus not to filter out signs whose commercial use must be prevented by all means. Rather, the purpose of this provision is to prevent signs which are contrary to public policy or accepted principles of morality from enjoying the privileges of trade mark registration.’ 35 See, for instance, judgments of 9 March 2012, Cortés del Valle López v OHIM (¡Que buenu ye! HIJOPUTA) (T‑417/10, not published, EU:T:2012:120, paragraphs 26 to 27), and of 14 November 2013, Efag Trade Mark Company v OHIM (FICKEN LIQUORS) (T‑54/13, not published, EU:T:2013:593, paragraph 44). 36 Above, points 62 to 64 of this Opinion. 37 Paragraph 23 of the judgment under appeal. 38 See, for example, Cohen Jehoram, T., Van Nispen, C., and Huydecoper, T., European Trademark Law: Community trademark law and harmonized national trademark law, Wolters Kluwers, Alphen aan den Rijn, 2010, p. 171. 39 See Hasselblatt, G.N., Community Trade Mark Regulation: A Commentary, CH Beck-Hart-Nomos, Munich, 2015, p. 125. See also Opinion of Advocate General Jacobs in Netherlands v Parliament and Council (C‑377/98, EU:C:2001:329, points 95 to 99). 40 See, for example, decisions of the Boards of Appeal of 29 September 2004, R 176/2004-2, BIN LADIN, paragraphs 17 and 18, and of 28 June 2017, R 2244/2016‑2 BREXIT, especially paragraph 42; decisions of the Boards of Appeal of 6 July 2006, R 495/2005-G, SCREW YOU, and of 17 September 2012, R 2613/2011-2, ATATURK. 41 See decisions of the Boards of Appeal of 6 February 2015, R 2804/2014-5, MECHANICAL APARTHEID, paragraph 30, and of 22 September 2015, R 1997/2014-4, OSHO, paragraphs 34 and 36. See also judgment of 15 March 2018, La Mafia Franchises v EUIPO – Italy (La Mafia SE SIENTA A LA MESA) (T‑1/17, EU:T:2018:146, paragraphs 42 and 48). 42 See, for example, decisions of the Boards of Appeal of 1 September 2011, R 168/2011-1, fucking freezing! by TÜRPITZ (FIGURATIVE MARK), paragraphs 25 and 29; and of 23 February 2015, R 793/2014-2, FUCK CANCER, paragraph 19. See, for an overview of the practice in respect of Article 7(1)(f) of Regulation No 207/2009, European Union Intellectual Property Office, Guidelines for Examination of European Union Trade Marks, Part B: Examination; Section 4: Absolute Grounds for Refusal; Chapter 7: Trade Marks Contrary to Public Order or Acceptable Principles of Morality (Article 7(1)(f) EUTMR), pp. 4 to 6. 43 See decision of the Board of Appeal of 6 February 2015, R 2804/2014-5, MECHANICAL APARTHEID, paragraph 30. 44 See decision of the Board of Appeal of 2 September 2015, R 519/2015‑4, JEWISH MONKEYS, especially paragraphs 3, 10, 15 and 16. Interestingly, that decision focused on potential fans of the band as the relevant public rather than on those who might encounter the trade mark in their day-to-day lives. 45 Ibid., paragraph 11. 46 Decision of the Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE. 47 Decision of the Board of Appeal of 2 September 2015, R 519/2015-4, JEWISH MONKEYS, paragraph 11. 48 Ibid., paragraph 16. 49 Emphasis added. See decision of the Board of Appeal of 29 September 2004, R 176/2004-2, BIN LADIN, paragraph 17. In this connection, see also decision of the Board of Appeal of 6 July 2006, R 495/2005‑G, SCREW YOU, paragraph 20, in which it is stated that ‘signs which severely offend the religious sensitivities of a substantial group of the population are also best kept off the register, if not for moral reasons, at least for reasons of public policy, namely the risk of causing public disorder’. 50 See, for a similar approach, European Union Intellectual Property Office, Guidelines for Examination of European Union Trade Marks, Part B: Examination; Section 4: Absolute Grounds for Refusal; Chapter 7: Trade Marks Contrary to Public Order or Acceptable Principles of Morality (Article 7(1)(f) EUTMR), p. 4: ‘“public policy” refers to the body of Union law applicable in a certain area, as well as to the legal order and the state of law as defined by the Treaties and secondary EU legislation, which reflect a common understanding of certain basic principles and values, such as human rights.’ 51 See also in this regard, ibid., pp. 4 to 5, stating that the concept of accepted principles of morality ‘excludes registration as European Union trade marks of blasphemous, racist, discriminatory or insulting words or phrases, but only if that meaning is clearly conveyed by the mark applied for in an unambiguous manner’. 52 Directive of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25). This directive has been repealed and replaced by Directive 2015/2436 cited above in footnote 33. 53 See judgment of the EFTA Court of 6 April 2017, Municipality of Oslo (E‑5/16, paragraph 86). 54 For example, there is little doubt in my mind that trade marks connected to or invoking acts of terrorism or terrorist organisations will be contrary to both public policy (since it is certainly a matter of public policy to combat such activities and maintain peace in society) and accepted principles of morality (since it is clear that almost all of the European society will abhor any such acts). 55 The introduction by the Czech legislature two decades ago of a new rule giving so-called ‘absolute priority’ to (previously rather endangered) pedestrians crossing the street over passing vehicles at the designated areas is a good example of that scenario. What was originally perceived as another public policy traffic rule has in the meantime (hopefully) mutated into a moral rule as well. 56 See the list stated in point 7 of the present Opinion. 57 In this sense, the Guidelines of the European Union Intellectual Property Office for Examination of European Union Trade Marks, cited above in footnote 50, p. 5, state that ‘the national legislation and practice are considered as factual evidence that enables an assessment of the perception of the relevant public within the relevant territory’. 58 Above, points 65 to 68. 59 Decision of the Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE. 60 In application of Article 52(1)(a) of Regulation No 207/2009 (absolute grounds for refusal) and Article 53(1) of the same regulation (relative grounds for refusal). 61 I note that the title of the third ground of appeal refers not only to the principle of sound administration but also to the principle of legal certainty. However, the latter principle is not commented upon by the Appellant and the third ground of appeal shall be understood as referring to principle of sound administration only. 62 Concerning Article 75 of Regulation No 207/2009, see judgment of 28 June 2018, EUIPO v Puma (C‑564/16 P, EU:C:2018:509, paragraph 65). 63 See judgment of 28 June 2018, EUIPO v Puma (C‑564/16 P, EU:C:2018:509, paragraph 60 and the case-law cited). 64 Judgment of 28 June 2018, EUIPO v Puma (C‑564/16 P, EU:C:2018:509, paragraph 61). See also judgment of 16 January 2019, Poland v Stock Polska and EUIPO (C‑162/17 P, not published, EU:C:2019:27, paragraph 60 and the case-law cited). 65 Judgment of 28 June 2018, EUIPO v Puma (C‑564/16 P, EU:C:2018:509, paragraph 64). 66 Decision of the Board of Appeal of 28 May 2015, R 2889/2014‑4, DIE WANDERHURE, paragraph 3. 67 Decision of the Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE, paragraphs 6 to 9. 68 Decision of the Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE, paragraph 12. 69 Decision of the Board of Appeal of 28 May 2015, R 2889/2014-4, DIE WANDERHURE, paragraph 13. 70 Decision of the Board of Appeal of 28 May 2015, R 2889/2014‑4, DIE WANDERHURE, paragraph 12. 71 See also decisions of the Boards of Appeal of 21 January 2010, R 385/2008-4, Fucking Hell; of 1 September 2011, R 168/2011-1, FUCKING FREEZING!; and of 2 September 2015, R 519/2015-4, JEWISH MONKEYS, commented on above in point 73 of the present Opinion. See also (in part) decision of the Board of Appeal of 6 July 2006, R 495/2005-G, SCREW YOU. 72 Paragraph 40 of the judgment under appeal. 73 The English title of the German book series (translated by Lee Chadeayne) reads The Wandering Harlot. However, if adapted into modern language, much less subtle translations could also be used. 74 Interestingly enough, the trade mark registration appears to be valid not only for goods (Classes 9 and 16), but also for services (Classes 35, 38, and 41). 75 See, for example, ECtHR, 14 January 2010, Atanasovski v. the former Yugoslav Republic of Macedonia (CE:ECHR:2010:0114JUD003681503, § 38). 76 See, amongst others, ECtHR, 14 January 2010, Atanasovski v. the former Yugoslav Republic of Macedonia (CE:ECHR:2010:0114JUD003681503, § 38); ECtHR, 7 June 2007, Salt Hiper, SA v. Spain (CE:ECHR:2007:0607JUD002577903, § 26); and ECtHR, 30 November 2010, S.S. BALIKLIÇEŞME Beldesi tar. kal. Kooperatifi v. Turkey (CE:ECHR:2010:1130JUD000357305, § 28). 77 Above, point 104 and footnote 60 of this Opinion.