Algospeak is a linguistic phenomenon that social media users typically employ to avoid censorship.
IPONZ has recently published its new Section 17 Practice Guidelines for the Trade Marks Act 2002, which includes a note stating that the Office will consider ‘algospeak’ when assessing the likelihood of a trade mark causing offence under Section 17(1)(c).
What are the rules around offensiveness?
Under Section 17,
“The Commissioner must not register as a trade mark or part of a trade mark any matter…the use or registration of which would, in the opinion of the Commissioner, be likely to offend a significant section of the community, including Māori”.
The approach taken is from the point of view of the “right-thinking members of the public”, and a mark is considered “likely to offend a significant section of the community” where it would cause a significant section of the community to be outraged, and/or a significant section of the community is likely to feel the mark should be the subject of censure. A minority can still be seen as a ‘significant section’ of a community, and if the mark is highly offensive to a small minority, that can also be sufficient reason for an objection.
Most commonly, IPONZ raises the objection in relation to the use of expletives such as the “F” word and the standard for offensiveness was a hotly discussed topic early last year. Now, applicants will have a new angle to consider when attempting to secure rights in their trade marks.
What is algospeak?
Algospeak is often used by young people or content creators to discuss both benign and sensitive topics without being banned or having their comments deleted. For example, during the Covid-19 pandemic, social media platforms often flagged, restricted or downranked content using ‘pandemic’ to avoid misinformation. To get around this, words such as ‘panini’ were used as a substitute for the word ‘pandemic’.
While the term pandemic is unlikely to be considered offensive, many other commonly used terms obfuscated by algospeak on social media could easily be. Therefore, if the replacement term is used in a trade mark, depending on the context, it could potentially fall foul of the offensiveness test set out above, including camping, which is a term used in this context to mean abortion, or mascara, meaning sexual assault.
How is algospeak relevant to your trade mark?
The IPONZ Section 17 guidelines state that examiners will be mindful of language terms that originate from social media and become popular or common enough to be viewed as offensive when used as a trade mark, or as part of one.
Without adequate research, it is possible to adopt a trade mark that may initially appear harmless but has an offensive connotation in relation to the goods or services applied for.
Identifying algospeak in your marks
If it makes you feel old and out of touch reading this, you are not alone! At AJ Park, we have a diverse mix of trade mark specialists, including millennials and Gen Z, who can help determine whether your trade mark may have offensive connotations in relation to your goods or services of interest, even if these meanings are not immediately obvious to you. Feel free to reach out to one of our trade mark team for assistance.
