Now, you are probably wondering how this trade mark was accepted when it is an obvious spoonerism. Under section 42 of the Australian Trade Marks Act 1995 (Cth), an examiner must reject a trade mark if it is '(a) the trade mark contains or consists of scandalous matter or (b) its use would be contrary to law'. According to the Trade Marks Office Manual of Practice & Procedure, an examiner is obliged to decide, on behalf of the "ordinary" person, whether a trade mark should be regarded as shameful, offensive or shocking, and therefore be rejected'. It was further in the Manual that:
The words and images fitting this description have changed with the passage of time, and it is quite likely, in the 21st century, that words which would have caused major offence in earlier times are now acceptable as trade marks in certain markets. Similarly, words which were once innocuous may have developed quite different connotations and now be regarded as offensive in certain circumstances.
After two adverse examination reports, this seems to have been the approach adopted by Jamie White, representative of the applicant Universal Trading Australia Pty Ltd. Mr White is quoted in the Daily Mail as stating that 'the words "f**k" and "f**king" were now part of the universal discourse of the ordinary Australian ... over the passage of time, certain words which may have caused major offence in earlier times would now be acceptable as trade marks in certain markets, namely the Australian market'. (This was news to this Kat - although her people have a reputation for being 'easy going', she was not aware of the elevation of the f*bomb to 'part of the universal discourse of the ordinary Australian', except perhaps in relation to certain Ashes cricket matches). Nonetheless, this argument was persuasive to the Examiner, Clara Witheridge, who accepted NUCKIN FUTS for registration on 5 January 2012. However, Ms Witheridge attach a condition to her acceptance, namely that 'the trade mark will not be marketed to children'.
In the UK, section 3(3)(a) provides that a 'trade mark shall not be registered if it is contrary to public policy or to accepted principles of morality'. The term 'accepted principles of morality' has proven somewhat difficult to define. In the UK Trade Marks Examination Manual it is suggested that Examiners should ask the question: 'is the mark likely to cause offence which amounts only to distaste or is it likely to cause offence which would justifiably cause outrage?' If a trade mark is merely distasteful, then an objection by an Examiner under section 3(3)(a) is unlikely to be justified whereas, if it would cause outrage or would be likely significantly to undermine religious, family or social values, then an objection will be appropriate.
Readers may be interested to note that, in an example of trade marks considered objectionable under section 3(3)(a), the trade mark FOOK is stated to be 'contrary to accepted principles of morality as it is phonetically identical to, and visually similar to the taboo word FU*K in some regional dialects in the UK' (the IPKat recorded this little episode back in May 2004). On this basis, it seems that Mr White's argument would not be so successful if NUCKIN FUTS decided to expand in the UK ...
The IPKat, a simple soul, admits that he was not aware of the f*bomb until reading this post.
Merpel dares to (re)ignite the debate: is this (yet another) case of (over-)relaxed Aussies versus (over-) prudish Poms? Should NUCKIN FUTS be allowed to be registered as a trade mark?