THE CASE OF BREXIT BEER

On January 30, 2019, the EUIPO recently considered the case regarding the application for the trademark "Brexit." The case concerns the registrability of the figurative mark "BREXIT" for "caffeine-containing energy drinks; beer" in Class 32.

The application was rejected by the office on the grounds of lack of distinctiveness and conflict with public policy, as it was found that the relevant public includes all consumers in the EU, since they frequently encounter the term through the mass media and the Internet.

With regard to the violation of public order or public decency, the Grand Board found that the word "Brexit" denotes a sovereign political decision that was taken legally and has no negative moral connotations; it is neither an incitement to crime, nor a symbol of terrorism, nor a synonym for sexism or racism. The word alone does not express an opinion. The fact that some members of the UK public may have been upset by a controversial decision taken democratically does not constitute an offense. The GB therefore concluded that the sign cannot be considered contrary to accepted principles of morality, in and of itself, nor when used as a trademark for the goods in question.

 However, even at the time of filing, the term was so well known to consumers as the name of a historical and political event that it would not, at first glance, be associated with specific goods from specific merchants. It can acquire distinctiveness only if consumers are sufficiently exposed to it in a commercial context. Furthermore, the colors and font are not capable of diverting the public’s attention from the non-distinctive message conveyed by the word. The background evoking the Union Jack accentuates this message. For the reasons set forth above, the Grand Board rejected the application and the appeal.