Then again, maybe they can, as the mark NUCKIN FUTS has indeed been recently accepted for registration as an Australian trade mark in respect of certain snacks foods such as nuts and potato crisps.
The case is relatively unremarkable, aside from the relative ease with which the mark overcame objections raised by the trade mark Examiner. But it does add up with a number of other cases over recent times concerning so-called ‘scandalous marks’ which exposes just how far one can push the boat in terms of taste before a mark will fall foul of the ‘scandalous mark’ exceptions to trade mark registration in Australia.
The relevant ground under the Trade Marks Act 1995 is Section 42(a), which provides that the Registrar of Trade Marks must reject a mark if satisfied that the mark ‘contains or consists of scandalous matter’.
In the case of NUCKIN FUTS, the Examiner did raise an objection on the Section 42(a) ground noting that the mark was an obvious ‘spoonerism’ and evokes an offensive word.
The applicant argued that the swear word evoked by the mark is now part of everyday language in Australia and should not be considered offensive. Furthermore it was pointed out that the product was intended to be marketed to an adult market in adult venues, this was emphasised by the addition of a disclaimer to the mark stating that the mark will not be marketed to children.
Something in the response worked, as the mark was subsequently accepted.
There is now a line of cases that suggest that misspelled swear words, whilst being obvious and evoking the swear word, are passing the Section 42(a) threshold. The most famous mark possibly being FCUK (owned by French Connection). Other marks include CNUT and ABSOFCUKINGLUTELY (albeit this mark followed the unsuccessful attempt at seeking registration of ABSOFUCKINGLUTELY).
Culturally, the crude spoonerism is nothing new. In this regard, I’m reminded of ‘The Pheasant Plucking Song’. Apparently, I’m not the only one as there is a registered trade mark for PHEASANT PLUCKER!
There also appears to be a trend that accepts that Australians will find certain marks (while of potentially bad taste) playful rather than offensive, such as POMMIEBASHER and
LOOK GOOD + FEEL GOOD = ROOT GOOD.
Nevertheless, despite all attempts at arguing the misspelling line and even going so far as to question the pronunciation, the marks KUNT and KŰNT failed to achieve registration.
If there is some undying desire to evoke crude swear words in a trade mark, it would appear to be the case that IP Australia will not stand in the way and will not take the position of being the judge of what may be in bad taste. However, more direct usage of a swear word will indeed face a strong challenge on the basis of Section 42(a).
by Simon Ellis