South Africa: That Four Letter Word: When It Pays To Profane

Last Updated: 18 June 2012
Article by Vicky Stilwell and Lauren Frizelle

Most Read Contributor in South Africa, November 2017

In a decision which will no doubt cause knickers to become knotted, the German Federal Patent Court has ruled that a German liquor manufacturer, EFAG Trade Mark Company, is entitled to register as a trade mark the word "FICKEN", for alcoholic drinks, mineral water, fruit drinks and clothing.  "FICKEN" is the German equivalent of an English word which has no place in polite conversation, but is nonetheless widely used to express anger, amusement, shock, irritation and just about any other emotion (as well as filling in as an adjective, when there is just no other word that will do).  EFAG intends to use the word for schnapps, and may also use it for marketing spirits and other drinks.

In terms of Article 7 of the CTM regulations (echoed in Section 3 of the UK Trade Marks Act 1994) , trade marks which are contrary to public policy or to accepted principles of morality are not registrable.  EFAG'S initial attempts to register the name were, predictably, thwarted by the German Patent and Trademark Office, which steadfastly refused to register the name, citing this ground.  Not to be deterred, EFAG found a more willing audience on appeal.  In a rather thorough judgment, the Federal Patent Court pondered the public's increasingly elastic views on the boundaries of morality, concluding that "today [the word] is barely considered offensive or sexually provocative".  Although indubitably in poor taste, the court reflected, the word was gender-neutral, and thus not one-sidedly discriminatory.   Consequently, it held that the mark "FICKEN" did not offend public moral sensitivity in a manner that is intolerable (regardless of how embarrassed German shoppers might feel about asking for "FICKEN" Schnapps by name).  If, on the other hand, the word was specifically gender discriminatory and/or impaired human dignity, this would disqualify it from registration as a trade mark.

In further explanation of its decision, the court emphasised the appearance of the word ficken in dictionaries, including the authoritative German language guide, the Duden.  In addition, the court pointed out that the word is incorporated in the titles of numerous well-known and acclaimed movies, television programmes, books and even theatre productions, a case in point being "Shoppen & Ficken" (the German adaptation of Mark Ravenhill's famous play of a similarly titillating name).  Having considered the evidence of the public's growing acceptance of the word, the court reversed the Patent Office's decision, ruling in EFAG's favour.

Unsurprisingly, the ruling has elicited a mixed bag of responses from observers, ranging from the inevitable (and hysterical) wordplay around the German public's supposed preoccupation with the word "ficken", to outraged retorts and grave laments on the decaying state of society.  However, the registration of trade marks containing expressions of profanity is not an entirely novel concept.   In fact, EFAG's court victory follows the 2010 ruling by the European Union trademark authority allowing a German company to register as a trade mark the name "FUCKING HELL" for a beer.  Of course, this case was arguably different to the ficken case - in that the beer is apparently named after the quaint Austrian village of Fucking, and the word "hell" is the German term for light ale.  Thus, the name is, from a German language perspective, not obscene (although the marketing mileage achieved by the company concerned probably has been).

This enterprising German beer company is not the only entity to have slipped one past the goalie, so to speak.  In March 2006, British fashion brand GOI-GOI obtained registration of the trade mark GOI-GOI F*CKED UP RANGE, followed in February 2007 by a German individual's registration of the mark C.R.A.F.T CANNOT REMEMBER A FUCKING THING for clothing, footwear and headgear.  October 2008 saw a Danish company flying the flag with registration of the mark JUST A FUCKING T-SHIRT (contrary to the slogan, the mark was registered for other items and not just T-shirts).  2009 saw another coup by the Germans, with the registration of the mark FUCK LUCK for, amongst other things, sports betting, poker and gaming services.   We deduce that the applicant does not consider luck to be a factor in sports betting.

There have, over the years, been several applications incorporating the F-word which have been refused registration by OHIM and the IPO.  Some of these (for example, 2005 IPO application no. M850359 F*CK YOU CHOPPERS – the letter "U" was used and not a *) would have clearly offended the public's moral sensitivities in an intolerable way at the time when it was examined and, one might hazard, remains just as offensive today.  Other applications, such as 2010 IPO application no. 2562796 F*CK ME (a * was used, and not letter "U"), might be considered a more borderline case, given that the phrase is nowadays employed predominantly as an expression of surprise, as opposed to being discriminatory or an unacceptable violation of human dignity.  As an interesting aside, it does seem that the IPO has a sense of humour when it comes to certain marks containing profanity of a less obscene nature – case in point is trade mark no. 2451368 GIVE A SH*T (with the * and not the letter "I"), registered in class 16 for various goods including toilet paper.

Moving to the Southern Hemisphere, the Australians, also being a fun-loving nation with a tendency to use slightly off the wall quips, recently (on appeal) allowed the trade mark NUCKEN FUTS to proceed to registration, in relation to packaged nuts, accepting the argument that the F-word has become part of Australian vernacular.

Against this background, one is left wondering about the position in South Africa, a land boasting vocabularies of local slang as colourful and diverse as the many cultures inhabiting the country.  In terms of our trade mark law, a mark is not entitled to registration if the use thereof is likely to be contra bonos mores or to give offence to any class of persons.  Expressions of profanity are likely to fall under this category, depending on the Registrar's assessment of the social and moral acceptability of the word at issue.

A search of the trade marks register reveals no registered trade marks incorporating the F-word.  There is, however, one application apparently incorporating a variant of the F-word – a device mark with the letters HBFC beneath it, evidently an acronym for the charming slogan HUGE BY FUCKEN CHOICE, to be used on clothing, footwear and headgear.  It is unclear whether the full F-word actually forms a part of the mark, and debatable whether the mark will be accepted.  The smart money would probably on the mark proceeding to registration (subject to prior rights of third parties) without the slogan.  Other than the HBFC application, there are a couple other trade mark registrations and applications that warrant mention due to their inclusion of perennial South African favourites - kak and bliksem - expletives universally used (or, at least, understood) by most South Africans.  There are quite a number of applications on the register incorporating the word "KAK", ranging from the witty "MIND THE KAK", to the commonly-used insult "VOLKAK", and the even more commonly-used refrain "INIKAK".  There are also several applications for the hard-hitting phrase "NO KAK" in a range of classes, intended to be used for organic, natural, and eco-friendly goods and services.  As for the word "BLIKSEM", there are decidedly fewer entries, one of which is a registration of the word for (naturally) alcoholic beverages.  There is also an application for a device mark containing the intriguing phrase "POMP BLIKSEM POMP", against the depiction of a windmill.  Whether this mark, intended for use on unisex T-shirts, proceeds to registration, will probably turn on whether the phrase is taken at face value, in the context of a windmill (and whether the examiner concerned appreciates a bit of a giggle).

Another possibly less controversial example of a mark that has proceeded to registration in South Africa is FAT BASTARD, which is registered in class 33 and is used in relation to wine.  Predictably, the application was initially refused, but following outcry and indignant arguments by the applicant, claiming that the expression fat bastard is an accepted British expression used to describe a "particularly rich and full wine", the application barrelled forward to registration.

In conclusion, expressions hitherto considered profane may well become registrable, if South Africans are adjudged to be as vrotbek as certain of our European counterparts (which, it would seem, we are not, or at least not yet).  Admittedly, this is a simplification of the position - given the country's history, there are vastly more complex factors to be taken into account in determining whether a mark is likely to give offence to a class of persons; but that's a story for another day.

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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