TRADEMARKS
Making a mark out of a tragedy
There has been a marked increase in applications for trademarks closely connected to tragedies and other newsworthy events, but they can’t truly function as trademarks, say Vikrant Rana and Ritika Mogha of S.S. Rana & Co.
create awareness, allow people to share information, and organise action around a particular cause or issue. But popularised terms can also be used in the wrong way. This is highlighted by, for example, the sudden upsurge in the filing of trademarks closely connected to tragedies. While the world is trying to wrap its head
S
around the MH370 tragedy, some people have already tried to exploit it for their own benefit. On March 8, 2014, Malaysia Airlines flight 370 (MH370) disappeared, leaving no trace of the 239 lives on board, all of whom are presumed to be dead. Five days later, Aoan International filed an application with IP Australia for the trademark ‘MH370’. The agency rejected the application on December 12, 2014, saying the mark ‘MH370’ lacks distinctiveness as the term is in circulation globally and is scandalous. T e Indian Trade Marks Registry is no stranger
to receiving trademark applications related to tragedies. Eros International Media, an Indian motion picture production and distribution company, also applied for ‘MH370’. T e Indian registry has received numerous
other applications that make a mockery of national tragedies. Some of these are illustrated in the table opposite. T e table shows that the trademark applications
were fi led aſt er the date of the tragedies. Most of them are in their initial stage of examination and
ocial media have become an
indispensable part of life. A phrase or slogan, often with a hashtag, can
“PEOPLE AROUND THE WORLD HAVE WIDELY CRITICISED ENTITIES FOR VIEWING TRAGIC EVENTS AS AN OPPORTUNITY FOR COMMERCIAL EXPLOITATION.”
function as a service mark, false association, and being merely descriptive.
• ‘I can’t breathe’ T e application covers the last words spoken by Eric Garner, who died aſt er an incident with the New York police. T e USPTO has issued a non-fi nal offi ce action refusing the registration on the grounds of false connection and the mark being an informational slogan.
• ‘Je suis Charlie’ T e application is for the rally slogan adopted as a message of condolence, outrage and defi ance to show support for freedom of expression following the deadly attack on French satirical magazine Charlie Hebdo. It has yet to be examined.
have their status as either “formality check pass” or “marked for examination” on the Trade Marks Registry’s website. T e registry has raised objections to the
registration of such marks, but fi nal decisions are pending. Further, section 9(2)(c) of the Trade Marks Act, 1999 provides that a mark shall not be registered if it comprises or contains scandalous or obscene matter. T e US Patent and Trademark Offi ce (USPTO) has also been receiving
similar
applications. Some examples of these marks are enlisted below: • ‘MH17’ T e mark is related to the tragedy involving Malaysia Airlines Flight 17, which was shot down over Ukraine in July 2014. T e USPTO has issued a non-fi nal offi ce action that refuses it on the grounds of failure to
64 World Intellectual Property Review May/June 2015
Public and government response People around the world have widely criticised entities for viewing tragic events as an opportunity for commercial exploitation. T e purported creator of the phrase “Je suis Charlie”, Joachim Roncin, marked his outrage over the attempts to commercially exploit the phrase aſt er more than 50 related trademark applications were fi led in France alone. Aſt er wrestling with their responsibility in
this respect, the Offi ce for Harmonization in the Internal Market and the National Institute of
Industrial Property took a fi rm stance
by releasing notifi cations that marks falsely indicating a connection to Charlie Hebdo shall be objected to on the ground of public interest and may be refused registration. Sometimes entities having
a direct
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