The Spanish Trademark and Patent Office (OEMP) has just rejected the request of an Asturian businessman to register his sausages with the “Hijoputa” label, as confirmed to this newspaper by the applicant, Rubén Lavandera. It is not the first time that a headline like this transcends. A look at the newspaper library shows previous attempts: the company already tried it in 2009 before the Office for Harmonization in the Internal Market (OHIM)who declined the proposal, as than the General Court of the European Union (TGUE) when the company appealed.
There are more similar examples. In January, the OEMP rejected the attempt of four comedians to register the Spain brand emptied the one I have here hanging. In 2018, the TGUE declined the appeal of La Mafia sits at the table, an Aragonese chain of Italian restaurants. they keep using the name in Spain, but were unable to register the trademark at the European level. Also at community level, the request of a German liquor company was rejected to register the Ficken trademark (shit or fuck). These rejections generate headlines that advertise these companies, who know in advance that they do not have all of them to register these types of names.
Article 5 of the trademark law, referring to “absolute prohibitions”, specifies that signs that “are contrary to the Law, public order or good customs” may not be registered. That last point, that of good customs, is very subjective, “which allows the registrar to decide if there are doubts,” says Guillermo Ramos, a partner at the White Towers law firm, specializing in intellectual property. The communication sent to the Asturian businessman specifies that his request “attempts against good customs, since it can offend the sensibilities of a large sector of society as it is offensive and rude.”
exceptions
“It is logical that a brand called ‘Hijoputa’ would be rejected based on this. It’s not very complex,” adds Ramos, who classifies this type of conflict as “anecdotal.” “There are hardly any companies that try to put these kinds of names on their products,” he continues. One of the best known cases and that did receive the approval of the OEMP are the asparagus “Cojonudos”. “What is contrary to good customs or public order is something subjective. There are some meanings that, although controversial, are not so offensive. Son of a bitch is quite clear, ”adds Ramos. The fine line that separates what is authorized by the OEMP and what is not seen in another brand that Lavandera managed to register, the beers of fucking mother.
The OEMP guide to absolute prohibitions specifies that “are those signs contrary to morality in the sense of the moral conduct required and required in the normal coexistence of people who are considered honest. It is a concept that is sometimes not easy to specify because it depends on the social validity of certain values and the greater or lesser social permissiveness. In order to determine this type of signs, the target audience of the products or services for which registration is requested must be taken into account.
“In addition”, continues the OEMP, “the fact that a part of the relevant public may consider the most offensive expressions acceptable is not enough to consider that it is the perception that has to be taken into account. The assessment of whether a sign is contrary to good customs cannot be based on the perception of the part of said public that is not offended by anything, nor on that of the part that is easily offended, but must be made on the basis of the based on the criteria of a reasonable person with average thresholds of sensitivity and tolerance”.
The same businessman who has tried to register “Hijoputa” sausages has been selling a liquor with the same name since 2012. “That the OEMP rejects the registration of the brand does not mean that the businessman cannot market it. Simply, he is unprotected against the possibility that another company uses the same name, ”says the lawyer specializing in intellectual property. Sources from the OEMP explain that this body is limited to registering or rejecting trademarks, but they are not in charge of sanctioning. If the name of a product offends a specific person or group, the responsible company risks being sued in court by these individuals.
