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 risqutrade marks in con­nec­tion with their goods and services.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. 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.

Publications

Dis­missal and Dam­ages for Psy­chi­atric Injury: A Con­trac­tu­al Trap

In the recent deci­sion of Elisha v Vision Aus­tralia Ltd [2024] HCA 50 the High Court of Aus­tralia held that dam­ages for…

Valen­tine’s Day in the Work­place (2025 Edition)

Valen­tine’s Day, the cel­e­bra­tion of romance and roman­tic love, takes place annu­al­ly on Feb­ru­ary 14.While many assid­u­ous­ly avoid what they con­sid­er…

The Employ­ment Real­i­ty of TV Fame (2025 Edition)

Real­i­ty tele­vi­sion shows thrive on intrigue and dra­ma. A key com­po­nent of suc­cess­ful real­i­ty TV shows is the con­tes­tant view­ers love…

In the News

Michael Byrnes appeared on Break­fast with Ron Wil­son on 2SM on 13 Feb­ru­ary 2025 to dis­cuss legal issues relat­ed to Valen­tine’s Day in the workplace

Michael Byrnes appeared on Break­fast with Ron Wil­son on 2SM on 13 Feb­ru­ary 2025 to dis­cuss legal issues relat­ed to…

Michael Byrnes appeared on Nights with John Stan­ley on 2GB and 4BC on 11 Feb­ru­ary 2025 to dis­cuss legal issues relat­ed to Valen­tine’s Day in the workplace

Michael Byrnes appeared on Nights with John Stan­ley on 2GB and 4BC on 11 Feb­ru­ary 2025 to dis­cuss legal issues…

Michael Byrnes is quot­ed in the arti­cle, How to nav­i­gate mis­con­duct inves­ti­ga­tions involv­ing men­tal health chal­lenges”, pub­lished in HRM Online on 4 Feb­ru­ary 2025

Michael Byrnes is quot­ed in the arti­cle, ​“How to nav­i­gate mis­con­duct inves­ti­ga­tions involv­ing men­tal health chal­lenges”, pub­lished in HRM Online…

Sign up for our Newsletter

*Mandatory information