The UK Intellectual Property Office (IPO) been accused of being out-of-step after it denied an application to trademark the name “Queers & Co” on the grounds that its use of the word “queer” was “contrary to accepted moral values within the UK” and “offensive”.
The application was made by Gem Kennedy, an LGBT+ campaigner who runs a community Facebook group and who sought to use “Queers & Co” for a podcast and other media.
Nora Fowler, UK and EU Trademark Attorney and Associate at intellectual property law firm EIP, commented: “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”.
She continued: “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. 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”.
With over forty companies currently listed on Companies House as having the word “queer” in their names, and with the term used frequently in mainstream popular culture, such as in the TV show “Queer Eye”, the IPO’s decision in this case has proved controversial.
As Nora Fowler points out: “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”.