Tasteless: NOVICHOK – is it?
The Board of Appeal at the EUIPO has recently upheld the rejection of an application to register NOVICHOK for alcohol, beers and non-alcoholic beverages. The decision was taken under the not often invoked Article 7(1)(f) of the EUTM Regulation. This prevents the registration of marks which are “punishable under criminal law” and are also regarded as “vulgar and contrary to public order and morality”.
Unless you might be regarded as a relevant consumer in the world of nerve agents, the existence of Novichok as an extremely dangerous substance came to prominence following the attack by Russian agents on Sergei Skcripal and his daughter Yelia in Salisbury, England on 04 March 2018. Novichok is regarded as a chemical weapon and caused considerable panic and shock with this attack subsequently leading to the death of an innocent member of the public who came into contact with the nerve agent.
Following decisions to reject applications for BIN LADIN and also MH370 the Board confirmed the practice of the office to reject applications for marks which are closely linked to violent or terrorist attacks on human life.
The stance of the EUIPO contrasts that with the UK and French Trade Mark Offices which have both accepted applications for NOVICHOK although, in the case of the UK application filed in June 2018 the mark has subsequently been opposed.
The case highlights the different sensitivities taken by various trade mark offices in the European Union as to what is regarded as offensive and contrary to public morality. If anything, with the attack taking place on UK soil, one might have expected the UK Office to have adopted a stricter stance in terms of the trade mark NOVICHOK.