Can you register an offensive trade mark?

Section 3(3)(a) of the Trade Marks Act 1994 states that "a trade mark shall not be registered if it is-contrary to public policy or to accepted principles of morality."

Marks which offend this section will fall into three categories:

1. those with criminal connotations
2. those with religious connotations, and explicit/taboo signs
3. marks offending public policy are likely to offend accepted principles of morality. The term 'public policy' is intended to deny protection to marks which could encourage public disorder, or increase the likelihood of criminal or other offensive behaviour.

Examiners must decide whether such marks should benefit from or be denied the advantages of trade mark registration protection, and they should refrain from erring on the side of caution if in doubt, "the right to freedom of expression must always be taken into account without discrimination and any real doubt as to the applicability of the objection must be resolved upholding the right to freedom of expression, hence the acceptability for registration", Jesus Trade Mark, Geoffrey Hobbs Q.C. The applicability of the objection must be decided objectively and non-discriminately.

A mark must cause 'outrage' amongst a relevant part of the public to justify an objection being made against its registration. Thus, if a mark is merely distasteful, an objection under s 3(3)(3)(a) is unlikely to be justified. In order to make this decision, the Examiner must be objective and not take his subjective opinions into account (although of course, the fact that an Examiner is offended will alert him to the need for caution).

Examples of marks considered to be objectionable under Section 3(3)(a):

JESUS

Contrary to public policy; offence is caused by the fact that an accepted religious value is likely to be undermined to a significant extent if this word is used as a trade mark.

WHITE DOVE

Contrary to public policy as it would be seen as promoting drugs (White Dove is a nickname for a type of drug)

SNUFF MOVIES

Contrary to public policy as it would be seen as promoting pornography and murder.

Also, it is contrary to accepted principles of morality in view of bad language.

FOOK

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.