BRUSSELS (Reuters) - An advisor to Europe's top court has said the German phrase "Fack Ju Goehte", the title of a comedy film which references Germany's most celebrated writer, should be allowed to be trademarked - following a long-running legal row.
The EU Intellectual Property Office (EUIPO) rejected an attempt by the company which co-produced the 2013 film, Constantin Film, to trademark the title and use it for goods and services saying it was vulgar.
Constantin Film appealed the ruling at the EU's General Court, where it was upheld, then took the case to the bloc's top court the European Court of Justice.
Johann Wolfgang von Goethe, a literary giant whose works include the play Faust, the epistolary novel The Sorrows of Young Werther, and numerous poems, lived between 1749 and 1832.
In Germany, schools are often named after the writer, as is the country's international cultural institute, the Goethe Institute.
Constantin Film argued that the public associates the title, which referred to graffiti painted on a train by one of the characters in the film, with amusement and entertainment and that it has even been incorporated into the Goethe Institute's German language learning programme.
Michal Bobek, advocate general with the European Court of Justice, said in a non-binding opinion ECJ judges should scrap the EUIPO's decision and the lower tribunal's ruling.
"The offensive or vulgar nature of this trademark has not been proved with reference to a specific social context at a given time," he said.
The patent body had rejected the application, saying that the pronunciation of the words 'Fack ju' was identical to an English expletive and an insult in bad taste. It also said it was shocking and vulgar and offended Goethe posthumously.
Bobek said the patent office should have based its decision not just on the phrase but also on the broader societal perception and context.
He questioned the agency's failure to explain why it viewed the disputed phrase as vulgar when it took a more liberal approach four years ago and approved the phrase 'Die Wanderhure' based on the name of a German novel and its film adaptation, as a trademark. 'Hure' is prostitute in German.
Bobek also cited the importance of freedom of expression in trademarks. The ECJ, which follows the opinions of its advisers in four out of five cases, will rule in the coming months.
The case is C-240/18 P Constantin Film Produktion v. EUIPO.
(Editing by Alexandra Hudson)
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