Swiss Court: No Protection for 'Obscene' Trademarks

Swiss Court: No Protection for 'Obscene' Trademarks

BERN, Switzerland — A Swiss court has sided with the nation’s trademark office in a case involving an application for the brand “Mindfuck,” ruling there is no protection for “obscene” trademarks.

The Swiss Administrative Court acted on a trademark application by entrepreneur Dr. Petra Bock, who already has a mark for “Mindfuck” in Germany. Bock is the author of the “Mindfuck” line of books that discuss the phenomenon of people sabotaging themselves with destructive thoughts.

Bock’s counsel argued that it is no longer conceivable that “Mindfuck” is “intolerably” sexually offensive in modern times and asked for the court to grant Bock a trademark for the conjoined words for use in various branding opportunities, including retail goods.

But the Swiss Administrative Court, in its decision, said that “Mindfuck” stood for a “sexual offense against good morals” and left no intellectual property protection for Bock.

The court noted that each country examines the protection of a brand according to its own legislation, jurisprudence and roadmap, and that “it would not be compatible with the legal weightings of the legal system and business morality if a vulgar term for sexual intercourse were found in a public register and the commercial exploitation would be encouraged by the granting of an exclusion right.”

Industry attorney Marc Randazza of Randazza Legal Group told XBIZ he was surprised that Switzerland has decided not to protect “obscene” trademarks for commercial application.

“Switzerland's definition of ‘obscene’ is slightly different from ours,” Randazza said.  “And Switzerland doesn't have the First Amendment.

“Nevertheless, I'm somewhat surprised given the freedom of expression protections are pretty robust in Switzerland and Switzerland doesn't have the same stick up the ass feminists and Christians fucking everything up on a daily basis like we do.”   

In the U.S., a similar trademark case is on track to be decided. The Supreme Court heard arguments in January over whether The Slants, an Asian American rock band from Portland, Ore., can trademark its name despite the federal government’s objection that it is an "offensive" term.

With a ruling due ahead, U.S. justices will decide whether disparaging terms can be registered as trademarks or whether refusing registration is a violation of First Amendment rights.

The Slants’ long-running case specifically invites a challenge to the "immoral and scandalous" clause for trademarks that most affects the adult entertainment industry.

Randazza several years ago authored an amicus brief on behalf of the First Amendment Lawyers Association in The Slants case. The brief argued that subjective and arbitrary decisions about morality shouldn’t be used in determining whether a trademark should be issued.