Professor Ruth Anand, sitting as Appointed Person, has overturned the decision of Mr Hearing Officer Jones to refuse to register THERE AIN'T NO F IN JUSTICE for t-shirts (reported by the IPKat here).As the Kat previously pointed out, the registrability of this mark hasn't turned on morality, but rather on distinctiveness and, according to the Appointed Person, the test for distinctiveness applied was too strict. The Kat can do not better than quote her conclusion:
The mark in suit THERE AIN’T NO F IN JUSTICE, has no meaning in relation to the goods, is grammatically correct and contains an element of irony in its double entendre. I believe it has the necessary capacity to distinguish in relation to tee shirts, sweatshirts and baseball caps in the same way as it has already been found by the Registry to be distinctive for other items of clothing, footwear and headgear. Like any other trade mark, if THERE AIN’T NO F IN JUSTICE is not used in accordance with its essential origin function then it will be liable to revocation under section 46 of the Act.
The IPKat finds it a little strange that one of the things that renders this mark registrable is the second, arguably immoral meaning, but then double entendres tend to be considered socially acceptable in the UK. He's also a little surprised that use of the word "ain't" is considered grammatically correct (though the IPKat wonders if that's a typo for "incorrect").
Who says there ain't no F in justice?
![Who says there ain't no F in justice?]()
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Thursday, April 17, 2008
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Posts
That's all fine - but where can I buy one of the shirts?
ReplyDeleteLet's get down to a bit of serious analysis here because it's a pretty big issue.
ReplyDeleteThe European Courts require registration authorities to undertake full examination of all the facts and circumstances prior to accepting a mark for registration.
Such examination ought surely to include known practices in the trade of putting messages on T shirts to carry all kinds of messages - none of which would, in all probability, be TM in nature. The UK isn't alone in refusing such 'marks'; the USPTO has a concept of 'ornamentation' which amounts to the same thing.
It's also interesting that the AP cites OHIM guidance with approval in this case. That guidance says that if a slogan has a degree of "word play", eg alliteration etc, then this conveys distinctive character. Wrong. It may be a factor going into the mix but, of itself, it is not determinative. Just as a lack of invention or creativity cannot rule a mark out, neither can its presence rule it in.
I can't help but think that the owner of the mark does not intend it to be used an indicator of origin at all. Is someone really going to go into Selfridges (or similar) and ask for a t-shirt or cap made by the brand "There ain't not F in justice"? or is this really a cynical attempt to protect a slogan and to prevent people using what is a fairly common phrase for demonstrating/ protesting types? I expect time will find it to be the latter.
ReplyDeletewhere's the f in IPKat?
ReplyDeleteI think this is an F in shame
ReplyDelete