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Saturday, 21 January 2012

Nuckin Futs: what the ...?

Yes, you read the title correctly and no, this Kat has not made an unfortunate typo (was cheekily suggested by a certain Blogmeister). To satisfy your curiosity, this Kat can inform you that NUCKIN FUTS is actually a trade mark (No 1408134) which has recently been accepted in Australia in Class 29 for prepared nuts, mixtures of nuts and dried fruits, prepared snacks made from nuts, and potato crisps. 

Now, you are probably wondering how this trade mark was accepted when it is an obvious spoonerismUnder section 42 of the Australian Trade Marks Act 1995 (Cth), an examiner must reject a trade mark if it is '(a) the trade mark contains or consists of scandalous matter or (b) its use would be contrary to law'. According to the Trade Marks Office Manual of Practice & Procedure, an examiner is obliged to decide, on behalf of the "ordinary" person, whether a trade mark should be regarded as shameful, offensive or shocking, and therefore be rejected'. It was further in the Manual that:
The words and images fitting this description have changed with the passage of time, and it is quite likely, in the 21st century, that words which would have caused major offence in earlier times are now acceptable as trade marks in certain markets. Similarly, words which were once innocuous may have developed quite different connotations and now be regarded as offensive in certain circumstances.

After two adverse examination reports, this seems to have been the approach adopted by Jamie White, representative of the applicant Universal Trading Australia Pty Ltd. Mr White is quoted in the Daily Mail as stating that 'the words "f**k" and "f**king" were now part of the universal discourse of the ordinary Australian ... over the passage of time, certain words which may have caused major offence in earlier times would now be acceptable as trade marks in certain markets, namely the Australian market'. (This was news to this Kat - although her people have a reputation for being 'easy going', she was not aware of the elevation of the f*bomb to 'part of the universal discourse of the ordinary Australian', except perhaps in relation to certain Ashes cricket matches). Nonetheless, this argument was persuasive to the Examiner, Clara Witheridge, who accepted NUCKIN FUTS for registration on 5 January 2012. However, Ms Witheridge attach a condition to her acceptance, namely that 'the trade mark will not be marketed to children'.

In the UK, section 3(3)(a) provides that a 'trade mark shall not be registered if it is contrary to public policy or to accepted principles of morality'. The term 'accepted principles of morality' has proven somewhat difficult to define. In the UK Trade Marks Examination Manual it is suggested that Examiners should ask the question: 'is the mark likely to cause offence which amounts only to distaste or is it likely to cause offence which would justifiably cause outrage?' If a trade mark is merely distasteful, then an objection by an Examiner under section 3(3)(a) is unlikely to be justified whereas, if it would cause outrage or would be likely significantly to undermine religious, family or social values, then an objection will be appropriate.

Readers may be interested to note that, in an example of trade marks considered objectionable under section 3(3)(a), the trade mark FOOK is stated to be 'contrary to accepted principles of morality as it is phonetically identical to, and visually similar to the taboo word FU*K in some regional dialects in the UK' (the IPKat recorded this little episode back in May 2004). On this basis, it seems that Mr White's argument would not be so successful if NUCKIN FUTS decided to expand in the UK ...

The IPKat, a simple soul, admits that he was not aware of the f*bomb until reading this post.

Merpel dares to (re)ignite the debate: is this (yet another) case of (over-)relaxed Aussies versus (over-) prudish Poms? Should NUCKIN FUTS be allowed to be registered as a trade mark?

6 comments:

Pedro Malaquias said...

During my practice / studies, I have never faced a similar situation.

However, my opinion is that trade marks and trade mark law should not be subject to morality, since the function of a trade mark is to identify a product / service and even an offensive word is capable from doing it. Furthermore, I consider that some words could be offensive to identify certain products, but the same would not happen with others (please think of a sexual toy, pornography, etc).

In any case, I consider that said grounds of refusal should be erased from the law. The public protection against offensive signs should result from other side. And that is were the used solution in this case gets interesting in my opinion: "Ms Witheridge attach a condition to her acceptance, namely that 'the trade mark will not be marketed to children'." As far as I am aware, said condition would not be admissible with the current european trade mark law (please correct me if I am wrong) and it is based on consumer protection / advertising law. That is a solution that I clearly support, since it is the most reasonable one.

Mark Summerfield said...

What a brilliant piece of marketing this has been by the makers of NUCKIN FUTS!

Near in mind, this was not an official published decision following a hearing, it was merely the outcome of a perfectly ordinary examination process. While the contents of trade mark office files are available to the public upon request, they are not published online.

Acceptance of the application might have passed unnoticed if the applicant and/or their attorney had not fed the story to an increasingly lazy Australian press, who lapped it up.

And now it's gone global, the whole world will be trying to get its hands on our NUCKIN FUTS!

Anonymous said...

;) MEOW

Anonymous said...

- is it really so much different from FCUK that always has red light district connotations for me whenever I see it on a shop?

George

Roufousse T. Fairfly said...

And let's not forget the South Butt...

Rebecca Dimaridis said...

The phrase is from the American comedy "Dickie Roberts: Former Child Star" so this could develop into something interesting!

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