Photo: Allen & Unwin
Trademark applications can be denied if they're deemed to cause offense, but in 2025, what causes offense looks a bit different.
When journalist Paddy Gower attempted to trademark his brand and news entity "This is the F***ing News" a year ago, his application stalled at the Intellectual Property of New Zealand (IPONZ). (The asterisks are ours - Gower's application used the full word.)
The reason? It would "likely offend a significant section of the community", a clause in the Trade Marks Act 2002.
So, Gower resubmitted with "This is the F#$%ing News", and this application was accepted and registered, allowing him the exclusive rights to use the phrase.
"I was surprised that "This is the F***ing News" was rejected as a trademark, but "This is the F#$%ing News" was okay," Gower wrote on LinkedIn last week.
"I applied to the Intellectual Property Office of New Zealand, and it ruled that it was 'likely to offend a significant section of the community'.
"I'm not sure it does, given how much happiness people have when they say "This is the F***ing News" to me! But I guess, rules are rules!"
As trademark applications surge in New Zealand, The Detail looks at what is still considered offensive in New Zealand when it comes to trademarks, and whether a government agency should be the arbiter of what might offend.
"It is problematic that you have a government employee making the decisions about what is moral and immoral," says US Trademark expert Lisa Ramsey.
Under the Trade Marks Act 2002, a trademark can be refused registration if it is deemed likely to offend a significant section of the community - a clause that has taken on greater weight in recent years.
The current rules cover hate speech, culturally offensive material such as that which misappropriates or disrespects cultural values, and, like in Gower's case, swear words.
"I had a look at the register - I was interested in where we're at with swear words in New Zealand," Auckland University Law Professor Rob Batty says.
"It seems the 'F word' is likely to offend. S-h-i-t, not so much. Somewhere along the line, there is a dividing line."
The registration of scandalous marks was first prohibited under New Zealand law in 1889.
When the law was updated in 2002, the language was changed to "likely to offend".
"This is for a significant section of the community and this includes Māori," says Batty. "And it's this last bit, this last reference to a specific group, which has made New Zealand unique.
"Also, this idea of 'likely to offend' makes New Zealand law potentially wider in terms of its scope than the other British Commonwealth countries.
"The practice guidelines that refer to 'likely to offend' makes mention of a couple of cases - one is an application to register 'tiny penis'.
"Now this was successfully objected to in the United Kingdom. The judge in that case said 'when we are talking about being contrary to morality, it needs to be something that would create justifiable outrage or would create justifiable censure.
"And he thought penis is the correct term for that particular body part and it shouldn't be degraded in use for those particular goods and services."
Ramsey is in New Zealand to give talks about trademarks, and says some applicants claim their freedom of expression is being curtailed by a refusal to register.
"A number of years ago, musician Simon Tam tried to register [his rock band] "THE SLANTS" - he's of Asian-American descent and he was trying to reclaim the derogatory term as an anti-racist statement," she says.
"But he was refused registration because the law at the time prohibited registration of marks which may be disparaging."
But the mark has since been registered for reasons related to the fact that the US Constitution's First Amendment allows for the right to freedom of speech.
This was successfully argued again, in another case, when designer Erik Brunetti was refused registration of "FUCT" for clothing for immoral reasons.
"The common justification for protecting freedom of expression is that we should have an open marketplace of ideas, where both good and bad ideas are shared with the public."
But not everyone wins their claim to freedom of expression
"There was a gentleman who tried to register a swastika for flags and other products, and this was refused," says Ramsey. "And he said, 'I have a free speech right to register this symbol after Tam and Brunetti' and the trademark office said, 'no you don't actually'.
"People say this as a message - and a bad message - and it's not something that would function as a trademark."
Both Batty and Ramsey say the standards of offensiveness can and do change, as the world evolves.
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