Protection for JESUS mark refused
Basic Trademark SA applied to protect the mark in respect of a variety of products, including toiletries, clothing, paper goods, textiles, and games and playthings. The request for protection was refused by a hearing officer at the Trademarks Registry on the basis that registration would be contrary to Section 3(3)(a) of the UK Trademarks Act 1994, which precludes registration where the mark is contrary to public policy or accepted principles of morality. The hearing officer held that there would be many within the United Kingdom who would find the use of JESUS as a trademark distasteful.
Moreover, the hearing officer took the view that the use of JESUS would cause greater offence than mere distaste to a significant section of the general public. In reaching this conclusion, the hearing officer rejected the argument that JESUS would be taken as a simple name. While he accepted that some people would recognize JESUS in that sense, he found that this would be a minority. Basic appealed to the appointed person but the appeal failed.
The appointed person rejected the argument that the mark should be registered given that (i) the mark JESUS had been accepted in a number of other national registries of the European Union, and (ii) the Office for Harmonization in the Internal Market had accepted the word marks CHRIST and JESUS 2000 for registration as Community trademarks. In reaching this decision, he referred to the Help Note on Religious Offence published by the Committee of Advertising Practice in April 2003. This note advises that care should be taken in relation to advertising that uses religious symbols and icons, in particular where the central tenets or most sacred symbols and icons of a particular faith are being used.
The appointed person stressed that JESUS is the ultimate Christian name and commands the highest degree of reverence and respect among committed Christians. In his view, the common response to seeing JESUS being used for general commercial use as a trademark would be a mixture of anger and despair according to temperament. He stated that the grounds for refusal under the act that a trademark shall not be registered if it is "contrary to public policy or accepted principles of morality" must be interpreted and applied consistently with the provisions of the European Convention on Human Rights. Article 10 of the convention recognizes that the right to freedom of expression (including commercial expression) is subject to formalities, conditions, restrictions or penalties for the prevention of disorder or crime or for the protection of morals. He took the view that the use of JESUS as a trademark would be seriously troubling in terms of the public interest in the prevention of disorder and protection of morals, and that Section 3(3)(a) of the act could be applied to prohibit branding on the basis that it would undermine an accepted social and religious value to a significant extent.
Chris McLeod, Hammonds, London
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