South Africa: MH370: Registrable As A Trade Mark?

Last Updated: 16 January 2015
Article by Chavern Ismail

Most Read Contributor in South Africa, September 2018

On 13 March 2014 a company called Aoan International Pty Ltd filed an Australian application to register the trade mark MH370 in class 41, the class that covers education and entertainment services. If the combination of letters and numerals MH370 sounds somewhat familiar to you, it's because it's the flight number of the Malaysian Airlines plane that went missing en route from Kuala Lumpur to Beijing a mere five days before the trade mark application was filed.

The application was rejected by the Australian trade mark authorities. Their reasoning was that the trade mark was non-distinctive, because other parties should be entitled to do just the sort of thing that Aoan claimed that it wanted to do, which was to produce a TV documentary about the incident and call it MH370. As a result of this finding, the authorities did not need to consider a further objection that had been raised, which was that the trade mark was scandalous. An Australian lawyer who has written about this case, however, argues that this objection would also have been upheld.

This case might be seen as an example of a curious but not uncommon phenomenon, that of companies consciously choosing trade marks that are likely to offend at least some people - we should perhaps remember that there were Australian passengers aboard flight MH370, so there's far more sensitivity about the issue in Australia than there is here. Yet one might argue that if someone wishes to make a film or TV documentary about the incident, what more logical name than the flight number? This may just be the reason why the Australian authorities chose to deal with this matter on the basis of non-distinctiveness rather than offensiveness.

A famous example of a shocking trade mark is Shock and Awe - within a very short space of time of the USA launching its so called 'Shock and Awe' campaign against Iraq in 2003, there were some 27 US trade mark applications for the term, including one by Sony for video games - the company would later describe its decision to launch the product and file the trade mark application as 'an exercise of regrettable bad judgement'. Another example is John F Kennedy Jnr - a German individual applied to register this name as a trade mark very shortly after the ex-president's son died in a plane crash in 2009.

Trade mark authorities are required to deal with issues of taste and decency, in addition to the more common issues of distinctiveness and likelihood of confusion. In South Africa, for example, section 10(12) of the Trade Marks Act says that the Registrar must refuse registration of any trade mark, the use of which would be 'contrary to law, be contra bonos mores, or be likely to give offence to any class of persons' (contra bonos mores means contrary to good morals). This provision is mirrored in the legislation that deals with domain names in South Africa, which provides that anyone can object to an 'offensive registration', which is something that 'may be indicated if the domain name advocates hatred that is based on race, ethnicity, gender or religion and/or that constitutes incitement to cause harm.'

Famous examples of trade mark applications that have been refused on the basis of offensiveness include:

  • USA: Redskins; Heeb; Khoran; the slogan trade mark Stop The Islamization Of America; Bullshit; The Slants (the name of an Asian-American rock band); Fuct (for clothing). Older refusals like Madonna (for wine) and the slogan trade mark A Breast in the Mouth is better than a Leg in the Hand (for chicken restaurants) might seem quaint now.
  • UK: 4 Poofs & a Piano for entertainment services; Fook; Tiny Penis; Jesus (interestingly, Jesus for jeans was allowed in the USA).
  • EU: Paki, which is a derogatory term in the UK for people of Pakistani (or indeed South East Asian) origin. The court was not persuaded by the argument that there are some people of Pakistani origin who are not offended by the term, and in fact use it themselves.

In Germany, on the other hand, an application to register Ficken for schnapps was accepted on the basis that 'today the word is barely considered offensive or sexually provocative'-'ficken' means what you think it means in German.

In South Africa, the authorities also seem to be quite tolerant - trade marks like Dog's Bum and Mad About Pussy have been accepted, as has Fat Bastard, on the basis that this is a supposedly well-known British term for 'a particularly rich and full wine'. It's unlikely that anything that might be regarded as racist would be accepted however. As for MH370, I'm not convinced that it would be regarded as offensive.

In closing, I should point out that this phenomenon of companies consciously choosing names that might offend is different from the situation where companies simply don't do their homework, and choose names that don't travel well. Motor manufacturers are particularly prone to this. Well known examples including Ford's Pinto (an expression that means male genital of underwhelming dimensions in Brazil), GM's Nova (the Spanish term for 'won't go'), and Mazda's La Puta (prostitute in Spanish, the model proved to be particularly unpopular in Chile). Although companies who make these errors may well find that their trade mark applications are refused in those countries where their marks have unfortunate meanings, they're likely to receive even greater punishment at the hands of consumers!

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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