National and regional trade mark laws will invariably stipulate that a trade mark cannot be registered if its registration would upset accepted standards of morality. This may be phrased in different ways and is often linked to a broader "public policy" exception. Article 3(1)(f) of the Trade Marks Directive , for example, prohibits registration of a trade mark which is contrary to public policy or to accepted principles of morality.
It is reported that an application in Australia for registration of the mark MH370 - the Malaysian Airlines flight that disappeared last year - has recently been refused on grounds of morality. At the same time applications for registration of the mark JE SUIS CHARLIE as a Community trade mark have been withdrawn, no doubt on the basis that moral objections would be raised.
A quick online search will reveal numerous instances of marks that have been refused registration on moral grounds. A leading case in this area is the decision of the Grand Board of Appeal for the Office for Harmonisation in the Internal Market (OHIM) concerning the application for registration of the mark SCREW YOU . In an interesting judgment which considered among other things, the history of sexual expletives in swearing and the distinction between the meanings of the expletives "screw you" and "fuck you", the Board's opinion was that the mark was unquestionably a profanity. However, whilst its registration would not be permitted in respect of run of the mill goods it was acceptable in respect of sex toys and goods sold in sex shops.
The judgment made some attempt to establish where the line should be drawn - mild sexual innuendo and mildly pejorative terms might be registered, but obvious racial and cultural slurs will not be permissible. Marks glorifying terrorism or which would offend the religious sensitivities of a substantial group of the population should not be registered.
Our man on the Clapham omnibus for these purposes is a reasonable person with normal levels of sensitivity and tolerance.
Moral offensiveness as an absolute ground for refusal of registration raises the obvious difficulty that different societies (and different people within the same society) may not share the same view as to what is moral – and that perceptions change over time. Comments (including from the judiciary) made in the 1950s about homosexuality, for example, read as extremely shocking when seen today. With fewer people (at least in the UK) professing allegiance to a faith, it is harder for a moral code to be imposed from above – consumers make their own decisions.
Levels of sensitivity also change. Many UK and EU "consumers" seem quite happy to disparage one another on social media, suggesting a certain robustness among the population, while at the same time more conservative commentators note with dismay the increasing frequency with which complainants allege that their sensibilities have been outraged by something they have read in the paper or seen on the television, which suggests the opposite.
Set against moral questionability, familiar problems like "likelihood of confusion" may seem much easier to determine!