MARKING THE LINE FOR TRADEMARKS AGAINST PUBLIC INTEREST

Abstract

While business insignias have existed for centuries, the risk of their formal registration as trademarks falling afoul of specific statutory prohibitions has always been a concern, with the registration of the tongue-in-cheek “Eggslut” in Singapore bringing this issue to the fore. Internationally, almost all World Intellectual Property Organization members, that have trademark registers, provide for refusal of a registration on public policy and morality grounds (this paper uses “public interest” as an umbrella term for both grounds). Regrettably, however, there are neither fixed definitions of these terms relating to public interest nor universal agreement on classifying marks that may be contrary to public interest. These undefined or ambiguous terms perpetuate uncertainty and inconsistency in the registration of marks, and potentially undermine the core of trademark regimes. In Singapore, it remains uncertain when a trademark is contrary to public policy or morality under section 7(4)(a) of the Trade Marks Act. There has been no article on this aspect of Singapore law to date. In light of this statutory, judicial and literature lacuna, this paper proposes guidelines to better assist local courts with distinguishing registrable trademarks from those falling afoul of section 7(4)(a). By providing minimum standards for the interrelated factors of “degree of outrage” and “size of the section of public offended,” the proposed guidelines ensure that only marks that cause outrage to an identifiable section of the public are filtered out and refused registration. These guidelines are also crafted to apply to the particular factual matrix of each mark, while improving overall certainty and coherence in Singapore’s trademark regime.