16 February 2012 Australian trade mark decision nuckin futs?


An Australian snack food company has been given the go ahead to sell their prepared nuts product under its unconventional brand name "Nuckin Futs", following a legal trade mark battle spanning 12 months.

The initial trade mark application for "Nuckin Futs" was first rejected by the Trade Mark Office under the Trade Marks Act 1995, on the grounds that the mark was "scandalous and offensive "in light of it clearly being a "Spoonerism" of a colloquial oath or obscenity. A spoonerism is an error in speech or deliberate play on words in which corresponding consonants, vowels, or morphemes are switched.

Solicitors for the company argued against the objection claiming that the name was not of an offensive nature because over the passage of time, certain terms which may have caused offence in the past, are now more widely accepted particularly within the Australian market. In particular, it was submitted that the "f-word" was now considered to be accepted as part of everyday colourful and colloquial Australian discourse, which is inundated with words of a far more 'scandalous' nature.

In support of the application, the solicitors also implied that one would have had to have "lived an isolated existence to not come into regular contact" with these or similar words or phrases.

Referring to the commonly accepted meaning of "scandalous" as causing a significant degree of "disgrace, shock or outrage", the solicitors conceded that while there may be some level of objection to the use of "Nuckin Futs", it is not of a significant nature to support the rejection of the trade mark.

Last month, the Trade Marks Office agreed to allow the trade mark to proceed to acceptance, with a condition of registration that the trade mark will not be marketed to children.

With registration of this controversial trade mark due in July 2012, this decision will serve as a useful reference for trade mark owners who are interested in registering playful and risqué trade marks in connection with their goods and services.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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