Most people might initially assume that any trademark can easily be registered as long as it fulfills the relevant intellectual property criteria of the jurisdiction in question. However, this is not the case when a proposed trademark would cause offense towards any person or group of people.
Although governments and intellectual property authorities generally do not desire to restrict the use of trademarks for corporate purposes, they may step in if a particular trademark is flagrantly offensive in any way. While some may claim that laws barring such trademarks violate freedom of expression, action might nevertheless be taken if the authorities consider the registration of a trademark to be such an offensive act that it does more harm than good.
Offensive Trademarks and Rejections of Registration
The registration of a trademark may be denied if intellectual property authorities consider the trademark to be overly offensive. Different countries and territories define an “offensive” trademark by different criteria. In some areas, trademark registration may be denied for offensive content if either profanity or lewd material is used as part of the trademark. Other areas’ intellectual property laws may ban the registration of a trademark which disparages a particular group, culture, or country.
Often, when a trademark is denied registration due to perceived offense caused, the ruling is challenged. This is because what may be considered offensive to some might not necessarily offend certain others. Individuals or organizations applying for trademark registration might sometimes ascribe a different meaning to the trademark to that which official authorities do. When they challenge this rejection, they usually claim that the trademark was created without the intention to offend.
International Trademark Agreements and Offensive Trademarks
Several international trademark agreements provide governments and intellectual property authorities with the power to act accordingly towards offensive trademarks. Article 17 of the TRIPS Agreement permits all member countries to provide limited exceptions to the rights which any trademark confers. These exceptions can be used to place restrictions upon offensive trademarks.
Article 6 of the Paris Convention states that member countries are to determine their own conditions for the filing and registration of any trademark. Article 7, meanwhile, permits member countries to reject a trademark’s registration if the registration would damage public interest. Additionally, European Union countries are to abide by Article 9 of the Council Regulation. This article contains a provision to prevent third parties from using a trademark in an unapproved manner such as to cause offense.
Reasons for Laws Against Offensive Trademarks
There are several reasons why laws against offensive trademarks must exist. The most important of these is the protection of public morality and order. These laws enforce standards of societal acceptability by, for example, barring the registration of trademarks which are racist or overtly sexual as well as those promoting terrorism. The public use of offensive trademarks can perpetuate offensive or discriminatory sentiments or actions within the public sphere. Additionally, trademarks are controlled by authorities linked to governments. For the sake of its reputation, it is in a government’s best interest to avoid approval of trademarks deemed to offend many members of the public.
From an economic perspective, laws against offensive trademarks prevent possible offense or discrimination against market participants. This in turn restricts commercial flow and thereby reduces the country’s revenue. Laws against offensive trademarks can even help a government save money. This is because after barring an offensive trademark’s registration, no further money has to be channelled towards protecting that trademark and enforcing its protection and legal standing.
Characteristics of Laws on Offensive Trademarks
Although the details of each country’s specific laws on trademarks may differ, almost all have certain characteristics in common. For example, trademark laws generally state that the literal definition as well as the figurative elements of the trademark must be assessed before it can be deemed to be offensive. The manner in which the trademark is used within the business sphere must also be analyzed to determine its offensiveness or lack thereof.
Most countries’ trademark laws prevent the registration of any trademark deemed to be scandalous or contrary to proper moral values. These same laws can also be subject to change if there is a general shift in mindset or moral values within society. A trademark which calls to mind content which once was considered by most to be offensive but is no longer regarded as such would not be deemed to be an offensive trademark. It could subsequently be registered in accordance with the relevant country’s intellectual property regulations.
This article is brought to you by Exy Intellectual Property Malaysia and Singapore.