Since the concept of ‘accepted principles of morality’ is not defined by Regulation No 207/2009, it must be interpreted in the light of its usual meaning and the context in which it is generally used. However, that concept refers, in its usual sense, to the fundamental moral values and standards to which a society adheres at a given time. Those values and norms, which are likely to change over time and vary in space, should be determined according to the social consensus prevailing in that society at the time of the assessment. In making that determination, due account is to be taken of the social context, including, where appropriate, the cultural, religious or philosophical diversities that characterise it, in order to assess objectively what that society considers to be morally acceptable at that time.Moreover, in the context of the application of Article 7(1)(f) of Regulation No 207/2009, the examination as to whether a sign is contrary to accepted principles of morality requires an examination of all the elements specific to the case in order to determine how the relevant public would perceive such a sign if it were used as a trade mark for the goods or services claimed.In that connection it is not sufficient for the sign concerned to be regarded as being in bad taste. It must, at the time of the examination, be perceived by the relevant public as contrary to the fundamental moral values and standards of society as they exist at that time.In order to establish whether that is the case, the examination is to be based on the perception of a reasonable person with average thresholds of sensitivity and tolerance, taking into account the context in which the mark may be encountered and, where appropriate, the particular circumstances of the part of the Union concerned. To that end, elements such as legislation and administrative practices, public opinion and, where appropriate, the way in which the relevant public has reacted in the past to that sign or similar signs, as well as any other factor which may make it possible to assess the perception of that public, are relevant.The examination to be carried out cannot be confined to an abstract assessment of the mark applied for, or even of certain components of it, but it must be established, in particular where an applicant has relied on factors that are liable to cast doubt on the fact that that mark is perceived by the relevant public as contrary to accepted principles of morality, that the use of that mark in the concrete and current social context would indeed be perceived by that public as being contrary to the fundamental moral values and standards of society.Freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, must be taken into account when applying Article 7(1)(f) of Regulation No 207/2009.Under these circumstances, and in view of the fact that no concrete evidence has been put forward to explain plausibly why the German-speaking public at large will perceive the word sign ‘Fack Ju Göhte’ as going against the fundamental moral values and standards of society when it is used as a trade mark, even though that same public does not appear to have considered the title of the eponymous comedies to be contrary to accepted principles of morality, it must be held that EUIPO has failed to demonstrate to the requisite legal standard that Article 7(1)(f) of Regulation No 207/2009 precludes registration of the mark applied for.The relevance of the success of the eponymous comedies as one of the contextual factors is in no way invalidated by the fact that the absolute ground for refusal in Article 7(1)(f) of Regulation No 207/2009 cannot be overcome by proof of the distinctive character acquired through use, within the meaning of Article 7(3) of that regulation, of the mark applied for. Indeed, the success of the eponymous comedies with the relevant public and, in particular, the absence of controversy as regards their title must be taken into account in order to determine whether the relevant public perceives the mark applied for as contrary to accepted principles of morality and, therefore, to establish whether that absolute ground for refusal precludes its registration, and not with a view to disregarding that ground once its applicability to the case in point has been established.
