Can you Register a Rallying cry or Trending Slogan as a Trade Mark in Australia?
Following the Charlie Hebdo massacre, supporters of free speech and freedom of expression rallied behind the phrase JE SUIS CHARLIE. Within two days, “#jesuischarlie” had been tweeted over five million times. Less than a week after the shooting, trade mark applications for both “Charlie Hebdo” and “jesuischarlie” were filed in Australia. This follows as many as 50 applications for the phrase in France and similar applications in the United States, European Union and Belgium.
Attempts to register popular rallying cries and other social media hashtags as trade marks, following significant events and tragedies, is a growing trend in Australia, reflecting similar experiences in other countries.
On 15 December 2014, during the height of the Sydney hostage crisis, community members took to social media with simple words of comfort for Australian Muslims afraid to catch public transport, “I’ll ride with you”. The hashtag “#illridewithyou” was soon trending across Australia and within four hours had been used in 150,000 tweets. Before the day was out, an individual had already filed an Australian trade mark application for ‘#illridewithyou’ for stickers, wristbands and badges.
In the United States, there has been a spate of trade mark applications for rallying cries, with BOSTON STRONG, OCCUPY WALL STREET, HANDS UP DON’T SHOOT and I CAN’T BREATHE all being the subject of various unsuccessful attempts to secure exclusive trade mark rights.
As is the case in the United States, any attempt to gain exclusive rights in a rallying cry or other trending slogan in Australia is virtually doomed to fail.
We recently reported on IP Australia’s rejection of a trade mark application for “MH370”. As noted in that decision, marks that refer to well-known events or social or cultural phenomena are generally understood as signifying the subject matter of the applicant’s goods and services and will be considered incapable of functioning as trade marks.
Furthermore, under section 42(a) of the Australian Trade Marks Act 1995 (Cth), an application must be rejected if the trade mark contains or consists of scandalous matter. A trade mark will be considered ‘scandalous’ where its use is likely to cause shock and outrage to a significant portion of the community. This is likely to apply in many instances where the rallying cry is synonymous with a tragic event, such as the Charlie Hebdo shooting or the 2014 Sydney hostage crisis.
The “#illridewithyou” and “jesuischarlie” trade marks are yet to be examined by IP Australia. However, the media and the court of public opinion are very swift to deliver judgment, as other applicants seeking to capitalise on a rallying cry have quickly found out to their detriment.