TRADEMARK OFFENSIVENESS: BIAS, ENFORCEMENT, AND THE POWER OF PUBLIC OUTRAGE

BY SIDHANT CHAVAN

Trademarks are an important commercial right that protect business interests and allow brands to distinguish themselves. Recently, they have become increasingly prevalent in society due to the increased advertising mediums available to businesses. Due to this high visibility, the Australian Trademarks Office (‘ATMO’) prevents registration of ‘scandalous’ marks,1 which are marks causing a substantial level of ‘disgrace, shock, or outrage’ and go beyond mere offence.2 This is assessed by reference to the target audience of the relevant trademark.3 However, there have been proposals that s 42(a) of the Trade Marks Act 1995 (Cth) should have a wider scope and a lower threshold – such that mere offensiveness to any group could be sufficient to bar registration.4

This article firstly demonstrates how the current threshold unfairly prioritises the views of the predominant Western and Christian groups in society. However, it then advocates against lowering the threshold due to practical issues of enforcement. Finally, this article suggests public scrutiny and outrage will be the most effective method of allowing minority groups to be heard.