The application was rejected by the IPO on the basis of being “offensive” and “contrary to accepted moral values within the UK”.
Arguably, the IPO’s judgement is out-of-step with modern discourse and misapprehends the contemporary usage of the term “queer”.
According to Nora Fowler, a trademark attorney at EIP, a London-based intellectual property and copyright law firm, the judgement demonstrates a slow up-take by official bodies to react to the practice of reclaiming pejorative terms and opens up a wider debate on the issue.
When the UK Intellectual Property Office (the IPO) receives a new trademark application, it first examines whether that trademark fulfils all requirements for registration (e.g. that it is able to function as a “badge of origin”) and also that the application does not fall foul of any other rules (such as that the mark must not be deceptive or contrary to public policy, e.g. offensive).
The trademark application recently filed for Queers & Co with the IPO for various services in class 41 (including: organising events for entertainment purposes, publishing services, conducting conferences and seminars, etc.) has, as reported by the applicant, faced a refusal from the IPO on the basis that the IPO considers it to be offensive.
The purpose of the “offensiveness objection” is to prevent the registration of a mark which could cause distress or justifiable outrage amongst an identifiable section of the community or undermine current religious, family or social values. Some marks which have in the past been refused on the basis of offensiveness include FOOK, JESUS and TINY PENIS. One of the main difficulties with this basis for a refusal is that over time the meanings / connotations of words can change. Furthermore, what is offensive is subjective; what one person may find offensive, may be acceptable, or even empowering, to another.
In recent years members of the LGBT+ community appear to have reclaimed the term Queer and it seems to be no longer considered offensive by many, as long as it is used in these circumstances. Examples of this can be seen in popular culture, such as the popular TV show Queer Eye and the BBC Docu-series Queer Britain.
However, whilst there is an argument that members of a community should be able to identify as they wish, the IPO is left with a very difficult balancing act in terms of what should be registrable as a trademark. There are some members of the LGBT+ community who do consider the term offensive, there are also people who use the term in a way which is intended to be offensive. There is no real mechanism for the IPO to ascertain, when initially examining a new trademark application, whether the mark has been filed by someone intending to be offensive or if the trademark, when used in practice, would be used in a way which would cause outrage to members of the LGBT+ community.
This difficulty is also evidenced in the fact that there appears to be some inconsistency in the approach taken by the IPO as some trademarks containing the term Queer do appear to have been accepted for registration. Examples include: Queerly Out (registered for music entertainment services, nightclub services, etc.), Queer Prom (registered for various entertainment services) and QUEER (registered for entertainment and nightclub services as well as restaurant, hotel and bar services).
An initial refusal by the IPO is, however, not necessarily the final outcome. The applicant will have the opportunity to respond to a refusal by the IPO by submitting arguments and possibly evidence to try to show that the mark filed is not offensive and should be allowed to be registered.
