Morality and Trademarks: The South American Approach

By Arcos Ziemer, Alysa; Tavares, Pedro Silveira et al. | Suffolk Transnational Law Review, Summer 2017 | Go to article overview

Morality and Trademarks: The South American Approach


Arcos Ziemer, Alysa, Tavares, Pedro Silveira, Randazza, Marc John, Suffolk Transnational Law Review


I. Introduction

The Paris Convention and the TRIPS Agreement obligate signatory states to protect trademarks. (1) Meanwhile, those agreements provide leeway for member states to deny registration if the marks themselves are "contrary to morality or public order." (2) This article will discuss the meaning of morality in the trademark area, and when the imposition of a morality based restriction is legitimate or illegitimate. The United States recently addressed this issue in the U.S. Supreme Court case Matal v. Tam, but this does not change how the rest of the Americas draw their lines around commercial expression and morality. (3) Each country deals with trademark morality in a particular manner, and this study will focus on the South American approach to this commercial speech issue.

"Morality" refers to the "distinction between right and wrong or good and bad behavior." (4) On the other hand, "public order" refers to the "rule of law regarded as essential in the legal order of the State" or "a right recognized as being fundamental within that legal order." (5) Therefore, the two are not the same, but they do overlap. A trademark that is truly contrary to public order would also violate accepted principles of morality, but the opposite might not be true. This article will examine the registrability and use of trademarks that may be considered "immoral" or "offensive" under the respective laws in South American countries, particularly Brazil, Peru, Ecuador, Argentina, Colombia, and Chile. In all countries, the affected marks are usually considered immoral due to (i) a sexual (6) or vulgar connotation or reference, (ii) an offense to religions or beliefs worthy of respect and veneration, (iii) an offense to the honor of a person or a group of persons (7), or (iv) a reference to an illegal act or something that causes it or derives from it. (8)

When it comes to sexuality and vulgarity, western society continues to move toward being more "open-minded" in relation to entertainment, advertising campaigns, and even in politics. (9) For example, in a 2012 decision from Australia, a mark owner prevailed in its argument that the Australian Trademarks Act did not prohibit the mark NUCKIN FUTS. (10) While the mark was initially rejected because it was an "obvious spoonerism" (11) for "Fucking Nuts," the applicant's counsel argued that "fuck" and "fucking" were "now part of the universal discourse of the ordinary Australian." (12) The adult entertainment industry, which uses and attempts to register pornographic marks, has found itself more widely accepted than in the past. According to Kassia Wosick, assistant professor of sociology at New Mexico State University, pornography is a $97 billion industry globally, (13) making it a considerably lucrative business. (14) Sex toys nowadays can be easily found in retail stores like Wal-Mart and drug stores like CVS, and this segment is estimated to be a $15 billion business. (15)

With regard to the subject of the use of religious symbols in trademarks, the case of the Spanish football team, Real Madrid, is illustrative of the importance that religious symbols may have in certain contexts. The team removed a Christian cross from its official crest for specific projects, such as the negotiations regarding a Real Madrid-themed island resort in the United Arab Emirates and the launch of an officially licensed credit card issued by the National Bank of Abu Dhabi. In both cases, the change in the traditional crest was made in an attempt to please Muslim supporters of the world's wealthiest football team. (16)

While some companies deliberately avoid offending potential customers (like the owners of the marks ISIS for chocolate (17) and MITSUBISHI PAJERO for cars, (18) which realized that their marks could be offensive in certain circumstances and decided to rebrand), other companies intentionally opt for controversial marks, aiming at gaining consumers or media attention through controversy. …

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