Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99

Wanderhure permissible as a word mark

The application for registration of the term "Die Wanderhure" (The Wanderin Whore) as a Community word mark is admissible and does not infringe the ground for refusal under Art 7 (1) (f), (2) CTMR.

The authors and the publisher of the well-known novel "Die Wanderhure" (The Wandering Whore), of which there is now also a successful film adaptation, applied for the word sequence at the Office for Harmonisation in the Internal Market as a Community word mark. The list of goods and services mainly comprised books and other data carriers, advertising media and services in the field of advertising, marketing and telecommunications, as well as cultural activities. 

The trade mark application was refused on the grounds that the term was contrary to morality or public policy. However, following the appeal brought by the applicants against this decision, the Fourth Board of Appeal of the Office for Harmonization decided that there was nothing objectionable about the book title and thus the trade mark for the goods and services mentioned. 

Incidentally, the decision of the appellate court is a good example that lawyers do not lack the necessary sense of humour. For example, it is argued that

the contested decision mixes the mention of a phenomenon with the phenomenon itself. It is eminently suitable for banning crime novels with the word "murder" in the title, because, as is well known, murders are a crime according to § 211 of the German Penal Code, and there is nothing more immoral than committing such crimes, and it is eminently suitable for consigning the singer-songwriter Reinhard Mey to the stake because the song "Der Mörder war immer der Gärtner" ("The murderer was always the gardener") immorally denigrated the latter profession. In short: the contested decision fails to distinguish between fact and fiction.

It is also explained that

the term "itinerant service provider" does not exist in current usage. The social phenomenon described in it also does not exist in the present. The application sign therefore refers to the submerged world of the Middle Ages, about which we know so little that it is all the better to fantasise about it.

Ultimately, the Fourth Board of Appeal of the Office for Harmonization comes to the conclusion, 

the wandering lady may therefore continue to wander, and her wandering routes may be mapped with "scientific and surveying instruments", regularly updated in "loose-leaf collections", processed with "OCR character recognition", spread in "chat rooms" and declared to be a "sporting activity", whereby the Board naturally assumed that the "educational" services claimed meant those of non-profit social work and not those of education for prostitution.