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Is Trademark Decision Nuckin Futs?

Issued: March 01 2012

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 trademark battle spanning 12 months.


The initial trademark 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 trademark.

Last month, the Trade Marks Office agreed to allow the trademark to proceed to acceptance, with a condition of registration that the trademark will not be marketed to children.

With registration of this controversial trademark due in July 2012, this decision will serve as a useful reference for trademark owners who are interested in registering playful and risqué trademarks in connection with their goods and services.

About the Author

Anna Yeo, solicitor, and

Meesha McLeod, law clerk

Swaab Attorneys, Sydney

Tag:  Trade Marks Act 1995  Swaab Attorneys

 

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