IP Australia Rejects MH370 Trade Mark Application

On 8 March 2014, Malaysian Airlines flight 370 disappeared. Five days later, Aoan International Pty Ltd (Aoan) filed an application to register MH370 as a trade mark in class 41 of the NICE classification of goods and services for various services.

IP Australia initially rejected the application under section 41 of the Trade Marks Act 1995 (Cth) (Act) on the basis that other traders should be entitled to refer to MH370 with respect to the services proposed to be offered by Aoan. IP Australia then reconsidered its decision and decided to reject the application under section 42(a) of the Act saying that the trade mark was scandalous on the basis that the trade mark would offend a section of the community.

As a result of the further examination report, Aoan was given the option of attending a hearing on the matter and decided to attend.

IP Australia found that MH370 conveyed a specific meaning to ordinary Australians as the flight number of the missing aircraft. It, therefore, could not be adapted to distinguish the subject matter of Aoan’s trade mark application.  Aoan argued it wished to produce a documentary about the flight, however, IP Australia noted that this was the very reason why it should not obtain a monopoly as other documentaries had already been made.

On the question of whether or not the trade mark was scandalous, the Hearings Officer did not need to finally decide. We consider it likely that this section would also have been upheld by the Office.

The decision has relevance as a result of the recent trend of trade mark applications relating to tragedies. It appears that opportunistic trade mark applications are now filed seeking to capitalise on particular events. IP Australia seems unlikely to allow any of these applications to proceed given its quick fire rejection of the MH370 trade mark application.

To read the full decision, please click here.

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