The music production company behind one of the biggest boy bands in the world, 5 Seconds of Summer, has been refused registration of the trade mark ‘5SOS’. Is this due to a lack of up-to-date pop culture knowledge on the part of the Australian Trade Marks Office? You can read the decision here.
For those of you asking “who is 5 Seconds of Summer?”, rest assured that the Delegate was asking exactly the same question. 5SOS is an Australian boy band (although avid Fan Girls would beg to differ on the ‘boy’ part, since the fact that the kids play their own instruments apparently elevates them to the coveted status of just ‘band’), made famous by fronting that other ubiquitous tween-dream band One Direction (or ‘1D’ for those up to date with the lingo).
5 Seconds of Summer had applied to register “5SOS” as a trade mark in a number of classes. Following examination, the application was refused on the basis that the trade mark was substantially identical with, or deceptively similar to, four existing trade marks registered for similar goods or services. These cited marks were two marks for “SOS”, and two device marks that included “SOS”.
The Delegate found that “the name of this group is not notorious: apart from these proceedings I have not encountered the group and it is not suggested in the declaration that the group is notorious”. (Cue thousands of thousands of tween girls begging to differ).
On the basis of the evidence, the Delegate refused to accept the submission that ‘5SOS’ is pronounced ‘five soss’, finding that this pronunciation was only probable if one was familiar with the musical group and what they called themselves (which the Delegate was not). It is worth noting, however, that the Delegate was familiar with the “eponymous” band INXS, commenting that its reputation established an awareness that the name should be pronounced ‘in excess’ “rather than being a phonetic rendering of the word ‘inks’”.
The most likely pronunciation of ‘5SOS’, the Delegate concluded, was ‘5S.O.S.’ (ie ‘five ess oh ess’) because of people’s familiarity with the distress call ‘Save Our Souls’ and its common abbreviation to S.O.S. or SOS. Here, the delegate referred to rules of construction and pronunciation such as “ASOS, PSOS or SOSO”. (Here again, we query whether the Delegate is familiar with how ASOS is actually pronounced… Again, we hear thousands of online shoppers begging to differ).
Given this pronunciation and the perceived similarity to the cited “SOS” marks, it was determined that confusion was likely to arise from the proposed trade mark. Consequently the application was rejected. However, the Delegate did suggest the Trade Mark could be registered with a whittled-down list of the claimed goods and services, notably excluding “concerts, gigs, shows, events and festivals”. Given the nature of 5SOS’ business, this outcome may be “not fine at all”.
Perhaps the Trade Marks Office is wishing it “could wake up with amnesia, and forget about” its pronouncements on popular youth culture. Or maybe this isn’t the end of the story. Perhaps the famous 5SOS song wasn’t really about a girl wearing American Apparel underwear, but was actually about fighting Trade Mark office battles? Here are some of the lyrics:
Simmer down, simmer down They say we’re too young now to amount to anything else But look around We work too damn hard for this just to give it up now.