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 risqutrade marks in con­nec­tion with their goods and services.