The advent of instant messaging, text messaging and internet speak has created a lingo reflective of the evolving state of language and communication. Many words and phrases have been reduced to non-standard abbreviations and symbols, including initials for profanities which would be easily recognisable to the messaging masses. Whether the Trade-marks Office will view such abbreviations as registrable or contrary to Section 12(1)(e) of the Trade-marks Act is yet to be determined.
Section 9(1)(j) of the Trade-marks Act specifically prohibits the adoption in connection with a business, as a trade mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, any scandalous, obscene or immoral word or device.
The Registrar has in the past refused marks including Sue the Bastard and Heartless Bitches International, while registering F**k me I'm Famous!; Big Ass; Fat Bastard; FCUK; and Feckin, to name a few. As a practitioner, it will be difficult to predict whether euphemisms and chat acronyms will be considered registrable or the direct equivalent of the crude expressions they may represent, and therefore objectionable as being scandalous, obscene or immoral.
The courts in Canada have not provided any interpretation of section 9(1)(j) of the Trade-marks Act. Generally, what is scandalous, obscene or immoral would depend on community standards, and these standards evolve over time. A consideration is whether the word or design would offend the feelings or sensibilities of a significant segment of the public. However, it is yet to be seen who the Registrar will consider to be the public: the technologically savvy texter familiar with – but unlikely to be shocked by – messaging abbreviations, or their possibly unaware parents? Alternatively, it is possible that the hint of scandalous content may suffice in the Registrar concluding that any segment of the general public could potentially be offended by such matter.
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| Jill Terris |
Marks & Clerk Canada
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