Is the term POMMIEBASHER offensive?

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We reported in January on the decision of a US District Court ordering the removal of the Washington Redskins trade mark from the register on the grounds that the trade mark is disparaging to native Americans and therefore unlawful.

The non-registrability of offensive or disparaging remarks is common to many jurisdictions and the issue of where to draw the line has arisen recently in Australia in respect of the term “POMMIEBASHER”. Anyone who follows Ashes cricket will know that a POMME or POMMIE is a colloquial term used by Australians to refer to the English. It is not used in a respectful or appreciative sense.

In 2011, the Australian Trade Marks Office ruled that the word POMMIEBASHER – to denote someone who took pleasure in insulting Englishmen, particularly in a sporting context – was registrable as a trade mark and was not “scandalous”. The mark was registered in relation to clothing, beers and other beverages.

The successful applicant, a Peter Hanlon, then sought to register POMMIEBASHER as a business name. That application, however, failed with the Commonwealth Minister (the person responsible for approving company names) finding that the word was unsuitable for registration on the grounds that it was offensive. Mr Hanlon unsuccessfully appealed against that refusal.

The case highlights the different approaches in Australia that are taken to trade mark registrations and business name registrations. A business name may not be registered in Australia if it is offensive and the appellate body in this case made the point that a business name had a much wider application than the trade marked goods, with “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”. The body added that a business name must also not be likely to be offensive to any section of the public. Evidence was adduced that, in fact, there were people who found the term offensive.

The legislative regimes for the registrability of actually or potentially disparaging or offensive marks varies from jurisdiction to jurisdiction, but irrespective of the precise legal language, different jurisdictions continue to throw up interesting cases concerning where the borderline should be drawn.