BREXiT isn't offence: but it isn't a trademark either

While Brexit may evoke different emotions in different people, it was nonetheless surprising when the EUIPO's examiner denied the registration of the mark "BREXiT" on the ground that EU citizens would be "deeply offended" by the use of the word as a trade mark. The examiner's reasoning went on to state that it was an appropriation of the "seminal moment in the history of the European Union".

The irony of that purported "appropriation" should not be understated: the mark was applied for by Pawel Tumilowicz and Mariusz Majchrzak: two EU citizens of Polish nationality living and working in Manchester. They wanted the mark for their Prestwich-based energy drink business that they (very cleverly) describe as the "only reasonable solution".

The reasoning of the Examiner raised some eyebrows (and some hackles), and the decision was appealed to the Grand Board of Appeal. The appeal board did not overturn the decision of the Examiner not to grant the application, but it did quash the reasoning. The board held that the mark was not offensive, but it was certainly not distinctive enough under EU law to qualify for protection, and would be confusing to members of the energy-drink buying public. It added that the term "Brexit" denotes "a sovereign political decision" and has no negative moral connotations. They also said that it is not a "provocation or incitement to crime or disorder".

The Grand Board of Appeal concluded that there is no argument that Brexit is in and of itself offensive and is not synonymous with hate, sexism, racism or "anything of the sort". They have perhaps over-egged the pudding somewhat with the meticulous explanation about how not offensive the word is.  Surely it would have been sufficient to say that it is not offensive but simply cannot function as a trade mark?

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.