110 WINE LAW They are few case laws in respect of public policy. In the wine sector, the “Contra-Bando” sign has been registered for Rum in class 33 since the relevant public will perceive the sign as provocative, transgressive, rebellious, but not as an indicator of criminal origin of the goods18. The EUTMR does not define principles of morality. Nevertheless, this “concept refers, in its usual sense, to the fundamental moral values and standards to which a society adheres at a given time. Those values and norms, which are likely to change over time and vary in space, should be determined according to the social consensus prevailing in that society at the time of the assessment. In making that determination, due account is to be taken of the social context, including, where appropriate, the cultural, religious or philosophical diversities that characterise it, in order to assess objectively what that society considers to be morally acceptable at that time”19. Thus, it covers blasphemous, racist, discriminatory or insulting words or phrases, which would be perceived as such by the reasonable consumer with average sensitivity and tolerance thresholds. Therefore, the trademark designating, among others, marcs and brandies in class 33 was refused registration, since Hijoputa is clearly perceived as an insult in Spanish20. However, the ECJ has recently cancelled the refusal of an application for Fack Ju Gohte, designating various products, including “Alcoholic beverages (except beers)” in class 33 for misinterpretation and misapplication of article 7(1)(f) EUTMR. No concrete evidence has been plausibly put forward to explain why the Germanspeaking public at large will perceive the word sign “Fack Ju Göhte” as going against the fundamental moral values and standards of society when it is used as a trademark, even though that same public does not appear to have considered the title of the eponymous comedies, having been one of the greatest film successes of 2013 in Germany, to be contrary to accepted principles of morality. Furthermore, it has been ruled that freedom of expression must be taken into account when applying article 7(1)(f) of Regulation No 207/2009. I.4. Lack of Deceptiveness and Wine Trademarks Since they incorporate the denomination of their origin, traditional wine trademarks require articulation with all regulated terms or titles in the wine 18 EUIPO, Boards of Appeal, 7 May 2015, R 2822/2014-5. 19 ECJ of 27 February 2020, Fack Ju Göhte C-240/18, § 39. 20 GCEU of 9 March 2012, Federico Cortés del Valle López, T-417/10.
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