Australia and England’s sporting rivalries are legendary. Several Australian sporting identities are renowned for taking any opportunity to make an (affectionate?) remark that might unsettle one’s Imperial opponent. The word ‘POM’ or ‘POMMIE’ is a colloquial Australian word to refer to an English person, while ‘POMMIEBASHER’ refers to someone who is not of English background, but one who takes great delight in insulting Englishmen, usually in a sporting context.

In December 2015, the Administrative Appeals Tribunal (AAT) found the controversial word POMMIEBASHER to be undesirable as a business name because it was considered to be offensive. In contrast, in 2011 the Australian Trade Marks Office ruled that the word is registrable as a trade mark and is not scandalous. It has been a tough battle for the applicant, Mr Peter Hanlon, who sought to register POMMIEBASHER as a business name, and no-one could accuse him of lacking determination. The case was ongoing for two years before IP Australia, then another two years with the Australian Securities & Investments Commission (ASIC) and the AAT, the latter’s decision being handed down just before Christmas 2015.

Trade Marks application

In October 2008, Hanlon filed a trademark application for the mark POMMIEBASHER in relation to clothing and beers and other beverages. His application was rejected by the examiner twice on the grounds that it fell foul of Section 42 (a), that ‘the trade mark must be rejected if (it) contains or consists of scandalous matter’. He then sought a decision on the written record before Hearing Officer, Mr Terry Williams.

In his decision, Mr Williams considered earlier cases on the matter where marks such as LOOK GOOD + EAT GOOD = ROOT GOOD and FCUK were under scrutiny. He said, ‘If some notable person were to be described, by themselves or anyone else, as “a pommiebasher”, I am quite sure that both the ABC and the BBC would be able to report this piece of trivia in the evening news with perfect equanimity. The word is, in fact, in regular use in the media.’ He went on to say that, ‘Even if the clothing is intended for infants, lawn-bowlers or members of the church choir, I fail to see how the trade mark approaches even the lesser standard of bad taste, let alone “scandalous”. It cannot, as far as I can see, cause significant offence to anyone.’

Business Name registrations

With success at the Trade Marks Office, Hanlon sought to register POMMIEBASHER as a business name, which is essential if he were to operate an Australian business under that name. His attempts to register the business name were no less challenging. ASIC initially refused to register the name, arguing that it was undesirable because they believed it to be offensive. Hanlon then asked the Minister’s delegate to make the name available even though it was thought to be undesirable. The delegate refused consent, and Hanlon applied direct to the Minister to review the decision. The Minister affirmed his delegate’s decision. Hanlon also separately applied to ASIC for an internal review of their original decision, which they refused to overturn. He then applied to the AAT for review of ASIC’s internal review decision, and the decision of the Minister. At this point, it was four to nil against him.

Difference between Trade Marks and Business Names

AAT Senior Member, Mr Egon Fice, differentiated between the scheme for trademarks and that for business names. Under the Business Names legislation, names which are undesirable, for example, because they are offensive, must not be registered. Mr Fice stressed that the context of use of business names was different to that of a trade mark. Even though POMMIEBASHER had been registered for various goods, ‘The same cannot be said of a registered business name. That has a much wider audience application and particularly exposure to persons who are not necessarily followers of cricket or rugby, or who do not understand the way in which the colloquial expression is frequently used.’

Mr Fice said a business name must also not be likely to be offensive to any section of the public. He was presented with evidence of an Advertising Standards Board decision that said use of the word ‘Pom’, together with negative words, implied a derogatory and almost hostile meaning. Further evidence, extracted from a previous case involving discrimination, also outlined the offensive perception. The evidence, pulled from media releases, was sourced from a group of 26 English migrants living in Western Australia and Victoria who describe themselves as the British People Against Racial Discrimination. This group, which was formed in 2002 after a discussion at a backyard barbeque, considers the expression ‘Pom’ as insulting and discriminatory. Mr Fice concluded that, devoid of the cricket or sporting context, the word ‘POMMIEBASHER’ is likely to be offensive to members of a section of the public.

Despite Mr Hanlon’s best efforts, the great irony of the whole affair is that the true meaning of the word, and consequentially, the people who should actually be offended, seems to have been ignored. Being labelled a ‘Pommiebasher’ is not particularly complimentary. The archetypal representatives of ‘Pommiebashing’ would be certain legendary figures of the Australian cricket team. One wonders what the likes of Merv Hughes, Shane Warne, Ian Chappell and Rod Marsh would make of this?