Analysis of refusal of trademark applications : public policy and public morality

Abstract

The concepts of public morality and public policy are distinct to each society and do not apply to every country in the world. Morals are not codified in the law, but they are a part of society and evolve as society grows and develops. Policies, on the other hand, are dictated by a governing body, although they are still based on societal needs. Hence, how one society views something will differ from how another society views it. These two concepts can be found throughout the law and in every legal system, so it is no surprise that they are also found in Trademark Law. A trademark may be refused registration if it violates established morals or public policy, as stated in Regulation (EU) 2017/1001 on the European Union trade mark and under Maltese law in the Trademarks Act, Chapter 597 of the Laws of Malta, which is based on the European Union directive. However, there is no definition of these two notions or how to establish if a trademark is subject to such grounds of rejection. As a result, the question of how trademark examinations are done arises. Is it true that the public influences trademark examiners' decisions throughout the examination process? When examining whether a trademark falls under the remit of public morality and public policy, the author thinks that the examination should be conducted objectively, and examiners should not let their feelings and opinions affect their judgement. Furthermore, the author discovers that the public has a significant impact on the outcome of proceedings and that courts and national Intellectual Property Offices will make decisions based on the reasonable man test with a reasonable level of sensitivity and tolerance for these marks. However, as seen by decisions and judgments, the world is changing, and with it, society's values and policies change, thus what was decided in the past concerning a particular mark may be reversed in the future for a similar mark.