“MARICON PERDIDO” Trade Mark Denied: Morality and Distinctiveness in EUIPO’s Latest Decision

The Grand Board of the European Union Intellectual Property Office (EUIPO) recently ruled that the Spanish phrase “MARICON PERDIDO” (“hopeless faggot”) cannot be registered as a trade mark under Article 7(1)(f) of the EU Trade Mark Regulation (EUTMR), citing its contrariety to accepted principles of morality. Here’s a summary of the key points from the decision and its broader implications.

Background

Turner Broadcasting System Europe applied to register “MARICON PERDIDO” as a trade mark for entertainment goods and services. The phrase was tied to an upcoming TV series based on the memoirs of Spanish writer and critic Bob Pop.

However, the EUIPO Examiner rejected the application, stating that the phrase is offensive and contrary to public morality. An appeal followed, with the applicant arguing that the term had been reclaimed by the LGBTQ+ community. The case was ultimately referred to the Grand Board due to its legal complexity.

The Grand Board’s Decision

The Grand Board upheld the rejection, reasoning that:

1. Offensiveness: The phrase “maricón perdido” is a known insult in Spanish, translating roughly to “hopeless poofter,” and remains offensive to a non-negligible part of the public.
2. Cultural and Legal Context: Unlike the term “queer” in English, which has been reclaimed, “maricón” has not shed its offensive connotation in EU contexts.
3. Irrelevance of Intent: The Board emphasized that the applicant’s intentions or membership in the LGBTQ+ community are irrelevant. The assessment hinges on whether the term offends a reasonable person with average sensitivity and tolerance.

The Grand Board leaned on principles established in previous cases, such as COVIDIOT and SCREW YOU, to conclude that the mark violated accepted principles of morality.

Broader Implications

This decision echoes the growing role of Article 7(1)(f) in trade mark law, but some commentators suggest alternative grounds might be more appropriate. Could “MARICON PERDIDO” have been denied under Article 7(1)(b) (lack of distinctiveness) or Article 7(1)(c) (descriptiveness) instead?

For instance:

• The phrase, tied to a TV series title, could be seen as descriptive of the goods/services rather than identifying their origin.
• EUIPO Guidelines state that marks describing the subject matter of goods/services are inherently non-distinctive, potentially making this a simpler route to rejection.

This case also invites comparison with the RUSSIAN WARSHIP, GO F**K YOURSELF case, where a shift in reasoning—from morality to distinctiveness—ultimately sealed the rejection.

Conclusion

The “MARICON PERDIDO” ruling underscores the complexity of balancing public morality with trade mark registration. As EUIPO continues to refine its approach, one might wonder if the expanded use of Article 7(1)(f) is obscuring simpler solutions rooted in distinctiveness and descriptiveness. Perhaps the real “perdida” here is the clarity in applying these grounds.