Social media have become an indispensable part of life. A phrase
or slogan, often with a hashtag, can create awareness, allow people
to share information, and organise action around a particular cause
or issue. But popularised terms can also be used in the wrong way.
This is highlighted by, for example, the sudden upsurge in the
filing of trademarks closely connected to tragedies.
While the world is trying to wrap its head around the MH370
tragedy, some people have already tried to exploit it for their own
benefit. On March 8, 2014, Malaysia Airlines flight 370 (MH370)
disappeared, leaving no trace of the 239 lives on board, all of
whom are presumed to be dead. Five days later, Aoan International
filed an application with IP Australia for the trademark
'MH370'. The agency rejected the application on December
12, 2014, saying the mark 'MH370' lacks distinctiveness as
the term is in circulation globally and is scandalous.
The Indian Trade Marks Registry is no stranger to receiving
trademark applications related to tragedies. Eros International
Media, an Indian motion picture production and distribution
company, also applied for 'MH370'.
The Indian registry has received numerous other applications
that make a mockery of national tragedies. Some of these are
illustrated in the table opposite.
The table shows that the trademark applications were filed after
the date of the tragedies. Most of them are in their initial stage
of examination and have their status as either "formality
check pass" or "marked for examination" on the Trade
Marks Registry's website.
The registry has raised objections to the registration of such
marks, but final decisions are pending. Further, section 9(2)(c) of
the Trade Marks Act, 1999 provides that a mark shall not be
registered if it comprises or contains scandalous or obscene
The US Patent and Trademark Office (USPTO) has also been
receiving similar applications. Some examples of these marks are
'MH17' The mark is related to
the tragedy involving Malaysia Airlines Flight 17, which was shot
down over Ukraine in July 2014. The USPTO has issued a non-final
office action that refuses it on the grounds of failure to function
as a service mark, false association, and being merely
'I can't breathe' The
application covers the last words spoken by Eric Garner, who died
after an incident with the New York police. The USPTO has issued a
non-final office action refusing the registration on the grounds of
false connection and the mark being an informational slogan.
'Je suis Charlie' The
application is for the rally slogan adopted as a message of
condolence, outrage and defiance to show support for freedom of
expression following the deadly attack on French satirical magazine
Charlie Hebdo. It has yet to be examined.
Public and government Response
People around the world have widely criticised entities for
viewing tragic events as an opportunity for commercial
exploitation. The purported creator of the phrase "Je suis
Charlie", Joachim Roncin, marked his outrage over the attempts
to commercially exploit the phrase after more than 50 related
trademark applications were filed in France alone.
After wrestling with their responsibility in this respect, the
Office for Harmonization in the Internal Market and the National
Institute of Industrial Property took a firm stance by releasing
notifications that marks falsely indicating a connection to Charlie
Hebdo shall be objected to on the ground of public interest and may
be refused registration.
Sometimes entities having a direct connection with the origin of
a mark file trademark applications with the intention of preventing
third parties from commercially exploiting it. Cricket Australia
filed a trademark application for the phrase '63 not out'
with IP Australia. The trademark was filed after Australian
cricketer Phillip Hughes died after being struck by a bouncer while
on 63 runs during a match in November 2014, as a defensive strategy
to prevent people from cashing in on and commercially exploiting
the tragic incident.
The essential function of a trademark is to exclusively identify
the commercial source or origin of goods or services. Trademarks
based on tragedies fail to function as trademarks, as the public
does not identify such marks/slogans with a single source; instead,
people see these phrases as part of something larger than any
single person or entity.
Originally published in World Intellectual Property Review
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