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Intended to Offend But Who's to Judge?

12 Jul 2007

If being rude, obnoxious and offensive makes an individual stand out in a crowd, won’t the same work for brands?

In a crowded FMCG market where consumers are spoilt for brand choice, capturing the attention of buyers is becoming increasingly difficult. If your brand makes your target market stand up and take notice, then quite likely, your product sales will soar.
 
Perhaps this thinking motivated the owners of the Red Bull brand to apply to register the trade mark BULLSHIT back in 1999 for alcoholic and non-alcoholic beverages.

From a marketing point of view it is easy to see the merit in the brand. BULLSHIT is an obvious a play on the parent brand, RED BULL. And the word probably speaks the language of the product’s core market - the adventurous, hip, and cool youth of today. This section of society is not renowned for placing priority on delicate sensibilities and traditional values. Instead these consumers would like to see themselves as cutting-edge, open-minded, and even, dare I say it, slightly rebellious.

However, there are rules about offending everybody else. The Intellectual Property Office refused Red Bull’s application to register the trade mark BULLSHIT because it contravened the Trade Marks Act 1953.

The rule under the 1953 Act was that registering a trade mark which contained “scandalous matter” or any matter which would be “contrary to law or morality” was not allowed. Under the latest version of the Trade Marks Act 2002, a trade mark may be refused if it would be “likely to offend a significant section of the community, including Maori”.

So who decides what is scandalous, contrary to morality or likely to offend nowadays? Red Bull argued (somewhat predictably) that its BULLSHIT trade mark was no more offensive than Toyota’s use of “bugger” in its popular series of television advertisements.

And there are several other brands you could point to today that have used irreverent marketing techniques successfully. 42 Below vodka is a classic example. But there is a fine line to tread – sometimes a brand owner can push the technique too far. The Advertising Standards Authority is often called on to decide whether a particular advertisement crosses the line.

But registering a trade mark is different. It is the Commissioner of Trade Marks or, if a decision is appealed, then the Courts that decide if the mark is offensive. And offensive marks don’t get registered.

The BULLSHIT trade mark was not allowed to proceed. The hearings officer said the mark was not registrable because a substantial cross-section of the community were likely to find the mark offensive.

Since then, the Commissioner of Trade Marks has allowed CNUT and WNAK to be registered in New Zealand for clothing. Although there was some media interest at the time, no opposition was raised.

But are we really any closer to knowing what trade marks will be considered offensive? How do we define “offensive”, and what makes up a “significant section of the community”?

To find the answer to these questions we need look no further than French Connection’s UK registration of the trade mark FCUK, the pin-up model for offensive trade marks (excuse the pun).

As with Red Bull, French Connection’s core market consists of teens to people in their mid-thirties. At the time of adopting the FCUK trade mark, French Connection’s brand was perceived as a bit stale and in need of rejuvenation. What better way than to slap a whacking great expletive (I mean acronym) on billboards and high street windows across the UK.

As an aside French Connection’s marketing manager gets my vote for the bravest person in the UK.

As could be expected a concerned citizen attempted to invalidate French Connection’s registration on the basis that the trade mark FCUK was “contrary to public or accepted principles of morality”. This application failed.

The reasoning in that case provides some of the best guidance available about what marks will be held to be “offensive or contrary to morality”.

The hearings officer decided that although the intrinsic qualities of FCUK make it objectionable, it is not a swearword. And if it’s not a swearword, then the generally accepted moral principles that apply to use of swearwords do not apply.

So, the bravest person in all the UK got to keep their job! And the risky mark paid off – the company sold more than £60 million of FCUK branded product in 2005.

And what about the concerned citizen who set out to uphold the moral standards of society? He was ordered to pay costs… “bugger”!

An edited version of this article was published in FMCG magazine July 2007