Is “Nuckin Futs” too scandalous to be a registered trade mark?
The Australian Trade Marks Office has determined that an application for the trade mark “Nuckin Futs” is registrable on the basis that it is subject to an endorsement stating that the trade mark will not be marketed to children.
Trade mark application for “Nuckin Futs”
We reported in September 2011 in relation to a Trade Marks Office decision as to whether the POMMIEBASHER trade mark was unregistrable due to its scandalous nature. A further example of a potentially scandalous trade mark, “Nuckin Futs” was filed on 10 February 2011 in relation to nut products. The Trade Marks Office allowed the application to proceed to acceptance despite an initial objection that the mark was scandalous. On this basis, it appears that the mark may fall into the category of marks incorporating obscene or coarse language which has the requisite degree of invention or imagination for registrability purposes.
The Office’s condition of registration: no marketing to children
However, it is of particular interest that the application for “Nuckin Futs” was accepted subject to the following endorsement:
It is a condition of registration that the trade mark will not be marketed to children.
It is unclear exactly what is meant by the above endorsement as the terms “marketed” and “children” are not defined.
As a practical matter, it seems that the endorsement may be difficult to comply with unless the owner of the trade mark uses and licences the mark for use, in adult-only venues only and advertises and promotes the brand in a very restricted manner. Failure to comply with the condition of registration may make the registration vulnerable to cancellation.
A review of Australian registered trade marks comprising f— derivatives and euphemisms reveals that none of such registrations are subject to similar endorsements. Such marks include:
- Far Kew
- Fork’n L
- Farken Orsum
Lessons for trade mark applicants
It appears that the prospects of obtaining acceptance of a potentially scandalous mark may be enhanced if the applicant consents to the entry of an endorsement restricting the manner of use of the trade mark, for example, stating that the trade mark will not be marketed to children.