The modern world has become so clogged with sensory stimulation that businesses are resorting to shock advertising tactics or “shockvertising” to differentiate their products. Polarising vignettes capture the attention of buyers, evoke reactions and can equate to big profits. For example, the tongue-in-cheek slogans which are now synonymous with [New Zealand beer brand] Tui’s “Yeah Right” campaign has heightened awareness of the brand and help drive sales. It is, therefore, unsurprising that businesses are increasingly turning to controversial branding for memorability.
The Australian Intellectual Property office has recently drawn media attention to “offensive” trade marks after it accepted the trade mark NUCKIN FUTS for a snack containing nuts for registration. Section 42 of the Australian Trade Marks Act requires the Registrar to reject any mark which is regarded as shameful, offensive or shocking to the ordinary person. Following an assessment as to how the “ordinary person” with neither thick nor very thin skin would perceive the mark, NUCKIN FUTS was initially rejected as an “obvious spoonerism” and therefore shameful and inappropriate.
In arguing against the objection, the lawyer for the applicant argued that the words “f—-“ and “f—-ing” had over the passage of time become “part of the universal discourse of the ordinary Australian”. As a result, while some people may find NUCKIN FUTS distasteful, the brand could no longer be considered offensive. This argument was accepted by the Examiner on the condition that the products were not marketed to children.
The New Zealand Trade Marks Act contains a similar provision which requires the Commissioner not to register a trade mark if the Commissioner considers that its use or registration would be likely to offend a significant section of the community, including Maori. In practice, the assessment of what the hypothetical ordinary person would find “offensive” has been applied in a rather haphazard fashion. The Intellectual Property Office has rejected the mark BULLSHIT as offensive while determining the marks CNUT; FCUK and WNAK to be acceptable.
The rationale for these provisions is to prevent the registration of symbols that were used to promote ideologies which threatened the interests of society and the state. Arguably modern day consumers are less vulnerable to offence, more discerning of shockvertising, and more marketing savvy. If a brand is truly offensive, such as the recent “Libra gets girls” advertisement featuring a transgender model, it doesn’t take long for the storm of public criticism to blow the project to obscurity.
Therefore, the NUCKIN FUTS case marks an apt occasion to consider the appropriateness of these offense provisions. Do we still require trade mark examiners to act as gatekeepers of what brands should be considered socially offensive or can we gauge our own sense of humor?