What constitutes a ‘scandalous’ trade mark is not set in stone and adapts with society as the decision in Kristopher Preston [2024] ATMO 103 demonstrates.
The Trade Marks Act allows an application for a trade mark to be rejected if the trade mark is determined to relate to ‘scandalous matter’[1]. It was under this provision that an Examiner of the Australian trade mark office (IP Australia) rejected an application for the trade mark “ZRO FUX”, because it sounds like…well…“zero f**ks”.
However, unlike their trade mark application, the applicant did give a f**k and appealed the Examiner’s decision.
Provisions to prevent the registration of scandalous trade marks have long existed and have been used to exclude previous marks deemed highly offensive in “normal” society when the trade mark would cause “a significant degree of disgrace, shock or outrage”.
So, does “ZRO FUX” cause a significant degree of “disgrace, shock or outrage”? No, according to the Delegate hearing the appeal.
In supporting this conclusion, the Delegate cited previous decisions establishing that what constitutes ‘scandalous’ material should be judged by modern standards (not those of “1939”). Therefore, what is permissible should change along with society. With this in mind, the Delegate noted the repeated use of the term “zero f**ks” in society, in both a censored and uncensored form, including in the titles of a film[2] and a Netflix stand-up comedy special[3]. This mainstream use led the Delegate to conclude that while the term FUX may be considered by some, or many, to be in bad taste, puerile, or be offensive, it would not cause a significant degree of shock or outrage in modern Australian society.
So ZRO FUX joins esteemed company along with FARKEN ORSUM, FARKOFF, FARKUT and FORK’N L as an accepted Australian trade mark.
[1] section 42(a)
[2] The 2021 French film given the English language title, Zero Fucks Given
[3] Kevin Hart’s Netflix comedy special entitled ‘Zero F**ks Given
