Canada Too Has An Issue With Arbitrary Applications Of Morality In Trademark Applications

from the you-bastards dept

In our recent discussion about the delightfully vulgar filing by the Washington Redskins in an effort to point out the arbitrary application of morality by the government to trademark law, the point in the filing was driven home by just how many similarly vulgar and offensive terms the USPTO has been happy to sanctify with a valid trademark. Perhaps some of you out there thought that this was a uniquely American problem, something resulting from our overabundance of political correctness. It's not. A case in Canada over the trademark application for "Lucky Bastard Vodka" shows this quite well. It also shows the inherent problem in trying to have a government institution apply morality to business in this way.

In 2011, LB Distillers applied to the Canadian Intellectual Property Office (CIPO) to register “Lucky Bastard vodka” as a trademark. About eight months later, the agency responsible for trademarks, patents and copyright replied.

“The examiner came back and said it was immoral, scandalous and obscene, and that the general population of Canada would agree that it was an immoral name,” LB Distillers co-owner Cary Bowman said.

The micro-distillery’s appeal was rejected in 2012, but the company persisted, filing a separate application to register “Lucky Bastard.” On Oct. 8, CIPO sent a letter to LB Distillers stating that it “does not appear registrable” because it violates the Canadian Trade-marks Act, which prohibits trademarks that include “any scandalous, obscene or immoral word or device.”
So, here, as with the Redskins, we have a trademark office refusing a business a trademark because of the offensive nature of a word -- "bastard," in this case. Now, we could have a giant discussion over whether or not that word is truly offensive, as LB Distillers indeed tried to do with the government. Or, on the other hand, as LB Distillers also did, it could instead simply point out the blatant and glaring hypocrisy of the government's position.
A search of the trademark database reveals several containing the word “bastard” — including Fat Bastard wine, he noted. The situation amounts to one examiner applying his or her views to the process, he said.

“When it’s one person who’s deciding the fate of something like that, and they’re basing it maybe on their own morals as opposed to anybody else’s, and yet calling it everybody else’s, that’s quite unfair.”
And, really, that's the problem with these cases. We may think of trademark offices or government more generally as a sort of singular entity within our minds, but they're all just ultimately made up of people. People with differing views, different sensibilities, and different tolerances for different words. With both the American and Canadian trademark provisions around offensive langauge being so open to interpretation, what ends up happening is that these examiners are left to apply their own morality to these cases, which of course means that such morality will be applied inconsistently across all applications. That's how you get "bastard" being rejected by one examiner while it's already been approved by others. And that's partly why an appeals court found the part of trademark law that allows this in the US unconstitutional last week.

There are two possible solutions to this problem. The first is to harmonize the morality standards across all examiners in a trademark office so that they all apply government morality consistently. If that sounds impossible to you, it's because it is impossible. The only workable solution is to get trademark examiners out of the morality business entirely and judge these things purely on business and commerce grounds.


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  • identicon
    Anonymous Coward, 28 Dec 2015 @ 3:44pm

    I've been having a similar problem here in the UK trying to trade-mark my Cameron Pig-Fucker Ale.

    reply to this | link to this | view in chronology ]

  • icon
    Paul Renault (profile), 28 Dec 2015 @ 4:38pm

    Canada is officially bilingual, so let's look at its usage in french.

    'B√Ętard' (bastard):
    Bread - a loaf weighing some 450g or so, halfway between a baguette and a full-kilo loaf.
    Mortar - a mortar mixed from 10 to 15% lime and cement, used outdoors or high humidity indoor environments.

    In addition, I'm quite sure that the members of the rather long list of famous and accomplished historical bastards, which includes Leonardo da Vinci, would not consider their class/type/designation as immoral, scandalous and obscene.

    The staffer must have been a Harper appointee.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 28 Dec 2015 @ 5:37pm

      Re: Canada is officially bilingual, so let's look at its usage in french.

      The staffer must have been a Harper appointee.

      Yes, one of those radical Christians from Quebec, the Catholics. I'd call his job a sinecure, like he's got tenure.

      reply to this | link to this | view in chronology ]

      • icon
        Paul Renault (profile), 29 Dec 2015 @ 5:25am

        Re: Re: Canada is officially bilingual, so let's look at its usage in french.

        Maybe, except for the fact that Quebec is THE most secular province in Canada. Read up on the Quiet Revolution; it's time to update your prejudices, eh.

        reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 29 Dec 2015 @ 8:24am

          Re: Re: Re: Canada is officially bilingual, so let's look at its usage in french.

          ... it's time to update your prejudices, eh.

          Eh? :-) I prefer to think of them as cynicisms. I'm a prairie boy, surrounded by multitudinous Christian sects since childhood all walking the streets scrounging for converts. It's difficult for me to imagine living in '50s Quebec or Central or S. America where *everybody*'s pretty much Catholic (or anything else; Hindu, Buddhism, Shinto, ...). Then there's me who thinks it's all just scary monsters; god, vampires, zombies, tooth fairies, ...

          reply to this | link to this | view in chronology ]

          • identicon
            Suomynona, 29 Dec 2015 @ 6:57pm

            Re: Re: Re: Re: Canada is officially bilingual, so let's look at its usage in french.

            "I'm surrounded by multitudinous Christian sects since childhood all walking the streets scrounging for converts. ... Then there's me who thinks it's all just scary monsters; god, vampires, zombies, tooth fairies"

            I'm an atheist that has been living in the middle of the bible belt for decades. I tend to include members of all of those difference secs (whatEVER they may be) as "scary monsters" as well. Even more-so, since they can actually GET me.

            reply to this | link to this | view in chronology ]

            • icon
              tqk (profile), 30 Dec 2015 @ 5:55am

              Re: Re: Re: Re: Re: Canada is officially bilingual, so let's look at its usage in french.

              I once told a couple I couldn't join a church because I'd be lying if I did. I don't believe. A guy who overheard us talking said he'd joined five churches. That's where he gets his best business contacts.

              reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 28 Dec 2015 @ 4:40pm

    "Bastard"?

    Bastard? Really? Yes, it is used as an insult, but its use is wider than just as an insult. It's like the word "bitch": it's the proper word to use for a female dog.

    reply to this | link to this | view in chronology ]

  • identicon
    Alex, 28 Dec 2015 @ 6:54pm

    I have a real problem with the suggestion that Bastard is immoral. The reality is that the congress of two people that were not married produced a child. The Child had no input in the Morality of the act or subsequent consequences. If that child is a male, it is called a bastard. The English language is very rich in having specific words to describe specific situations. (In spite of the Politically Correct to keep making up new words to replace the old words. A Disabled Driver is a Crippled Driver).

    This could be a cultural problem within Canada. Given the technical definition of Bastard and that 62% of children in Quebec are born out of marriage, that would suggest that 62% of the males born in Quebec under the age of 25 are bastards.

    So I think, what the examiner is suggesting that most Canadians find that many young males with "good luck in Quebec" are immoral, scandalous and obscene, and that the general population of Canada would agree ..."

    Maybe they should try something like "Lucky Lovechild" or "Justin Bieber" (both lucky and a bastard, but not from Quebec)

    Or maybe the examiner should just STFU and stop believing he / she /it has the "right" to unilaterally define immoral the label to a result of what IT considers immoral in spite of the fact that a large number of Canadians don't appear to have any issue.

    reply to this | link to this | view in chronology ]

  • icon
    Vladilyich (profile), 1 Jan 2016 @ 10:14am

    Trademarks and business in Canada

    I happen to live in Ontario and one of my favourite restaurant chains is "Fat Bastard's Burrito Factory. They are excellent and inexpensive (and huge!). The trademark officer that rejected the application must have been having a bad day at that time.

    reply to this | link to this | view in chronology ]


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