Australia: Trademarking bad taste

Last Updated: 5 August 2014

News that somebody sought to register a trademark on the term MH17 within a day of the plane being shot down over Ukraine makes you shake your head in despair. The Sydney Morning Herald reported that a mysterious company registered in Kuala Lumpur applied to the Australian Trade Marks Office for the right to trademark the term MH17 - the flight number of the plane downed with 298 people on board, including 38 Australian citizens and residents.

It follows a similar move after flight MH370 mysteriously disappeared on March 8 with 239 people on board. Four days after the Malaysian plane went missing a company applied to register a trademark in Australia for the term MH370. Malaysian airlines has since also applied to register the flight number as a trademark, presumably to stop others exploiting ownership of the term.

If the companies succeed in getting a trademark for the flight numbers it would mean they own the term. In future anybody who wants to use the flight numbers in the title of a book or movie would have to pay rights to the trademark holder.

It remains to be seen what the Trade Marks Office decides, but the law covering trademarks does not consider bad taste a defining factor.

Section 42(a) of the Trade Marks Act 1995 states an application for a trademark can be rejected if it contains or consists of "scandalous" matter. It's up to the Trade Mark Office to determine what scandalous means, and it takes each application as a separate case. It takes into account emotional reactions the term might elicit from the public and whether a "not insubstantial" number of people will be shocked by the trademark. It recognises public reaction changes over time. The Office recently allowed the trademark 'NuckinFuts' for a brand of nut snacks - but limited sales to pubs and clubs where kids couldn't buy them. The Australian Trade Marks Manual says humour or idiosyncratic spelling is generally allowable. That would amuse those walking around in T-Shirts saying FCUK.

You can trademark more than just words. Shapes, Smells, sounds, movements and even colours can also be registered. The Toblerone triangle shaped box is registered, as is the classic Coke bottle shape, Cadbury's purple wrapping, Kraft's cream cheese silver wrapping, and the red wax tips on bananas are registered by a company called Fada. They don't own the colour, but it does prevent a rival using the same colour or shape in similar products.

Copyright is different - it gives protection to the authors of created works such as literature, web content, drama, music and art.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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