On May 5 2020, Turner Broadcasting System Europe Limited sought to register theword mark “MARICON PERDIDO” (Lost queer) as a European Union trade mark(MUE018234526) for the goods and services in class 9 and 41 regarding audio visual recordings and Entertainment services. However, the trade mark applied for wasentirely refused by the examiner on the grounds of Article 7(1)(f) EUTM by whichtrade marks that are contrary to public policy or to the accepted principles of morality in the EU shall not be registered.

The refused sign was considered to be a rude and offensive expression which peopleshould avoid using. The examiner argued that the applied sign would offend not onlythe targeted public, but also other people who may encounter the sign by chance in everyday life. In this case, the examiner concluded that there is a public interest in ensuring that consumers are not confronted with offensive words and although theexpression “maricón perdido” is a regular part of the public’s vocabulary it is known as an insult, which is contrary to the accepted principles of morality that society expects.

In view of the contested decision the applicant filed an appeal arguing that  the Office decision was erroneous and reductionist as it fails to examine the perception of therelevant public and its social context. The applicant states that the expression“MARICON PERDIDO” does not have an offensive meaning because it was anhomophobic expression that has now evolved into an ironic expression used byhomosexual people themselves. In this sense “MARICON PERDIDO” is applied as a title of a TV show described as the story of a young gay teenager from a small town, confronted with rural homophobia who moves to Madrid to this modern, progressive, liberal atmosphere. Another argument that the applicant defends is that there are similar signs that have already been registered by the Office for similar goods and services.

Due to the legal complexion of the case and specific circumstances the Fifth Board ofAppeal referred the case to the Grand Board. In order to solve the issue the Grand Boardtook into account the criteria established in the decision R260/2021-G regarding the“COVIDIOT” case. First of all, the accepted principles of morality must be definedaccording to the social consensus prevailing in the society attending the social contextand the particular circumstances of the part of the Union concerned. In this sense,theGrand Board takes into account the filling date of the trademark in order to establish theconcerned social context. The applicant argued in its appeal that the trademark did notviolate the accepted principles of morality because nowadays the gay community has reappropriated the negative meaning of the expression “Maricón perdido” and thereforeis no longer perceived as an insult. The Grand Board, for the purposes of examination ofthe ground for refusal provided must take into account the general public and not only the public to which the goodsand services covered by the sign are directed.

In the present case, the Grand Board observes that the expression “maricón perdido”  isused as an insult and therefore agrees with the contested decision as it considers that onthe filing date the mentioned expression was seen as rude and offensive according to theRAE’s Dictionary. In this sense, the Grand Board considers that the term “maricón” isfar removed from the word “queer” as the last one is no longer an insult. The Grand Board notes the efforts to reappropriate or rehabilitate the term “maricón” alleged by theapplicant. However, it considers that the expression is still nowadays offensive for a large public. Also, the evidence submitted by the applicant in order to demonstrate thatthe expression “maricón perdido” is no longer offensive are all dated at least more thanone year after the date of application and therefore they can’t support the applicant’sclaim. The Grand Board fails to observe any evidence on the file that suggests that usingthe term “maricón” when referring to gay men, will be perceived as normal by thegeneral public and not as a homophobic slur. The evidence also suggests that the termcontinues to be unacceptable when directed towards gay men by someone from outsidethe community.

The Grand Board concludes that the EUTM applied for must be refused on the basis ofarticle 7(1)(f) EUTMR as being contrary to accepted principles of morality and therefore there’s no need to consider the compatibility of the mark with public policy. The trade mark is refused as it would offend a significant portion of the Spanish general public as being a homophobic slur and the appeal is dismissed.

Resolución de la Gran Sala de Recurso de 25 de noviembre de 2024 en el asunto R 2307/2020-G