Distasteful -- or worse? Trade mark registration, morality and public sentiment

The IPKat received earlier today an email from Alan Clarke (Clarke IP Ltd), who writes:

"You may be interested to hear of this extremely distasteful (alleged - I've not checked any facts) attempt to register trade marks for the flight numbers of the two downed Malaysian Airlines jets - the recent Ukrainian incident, and the mysterious disappearance of flight MH.370. The quote below comes from the Guardian. The alleged registrant is wasting its money if it wishes to obtain money in this way, but it can't but cause more distress to a group of people already enduring enormous suffering".

The item on the Guardian website reads as follows:

"My colleague Kate Hodal @katehodal, who is in Kuala Lumpur, has come across a macabre twist to the MH17 and MH370 disasters: A company called Seyefull Investments in Belize has filed to trademark the terms "MH17" and "MH370" so it will get paid every time either term is used in print, radio, TV or online media. She emails:

The Coconuts website reports: The company's application to register "MH17" as one of its trademarks, in fact, was filed on July 17, aka the exact same day Malaysia Airlines Flight MH17 was shot down over eastern Ukraine, killing all 298 people on board.

The application for "MH370" was made on May 2, after a more "respectful" period of time had passed since Malaysia Airlines Flight MH370 disappeared en route from Kuala Lumpur to Beijing.

The online portal continues: While the process of registering the flight numbers of crashed aircraft might be completely legit, and Seyefull Investments Ltd might actually succeed in their attempt to make money off any mention of "MH17" and "MH370", it still remains a fact that this is an ugly, opportunistic attempt at cashing in on the suffering and pain of thousands of grieving family members and millions of people worldwide - not to mention the ended lives of the hundreds of people on board both doomed jetliners."

Apart from the obviously distasteful nature of the possible use of the reported applications as trade marks, says the IPKat, there's a question as to whether a trade mark attorney, asked by a client to register such a mark, should simply execute the client's instructions on the basis that, if he or she didn't, someone else would -- or should something be said along the lines of "don't you think that what you're doing is really likely to upset people?" Or should the instruction simply be rejected  on the basis of "we're not the sort of firm that does things like this".  Merpel adds, there may be a time when such marks can be registered -- but won't that be when they are no longer likely to be associated by victims of a disaster or tragedy with the event in question, or where there is a prevalent secondary meaning? Words like TITANIC must have been very painful for many people to bear at one time but, 102 years after the event, no objection now remains to that word's registration as a trade mark and use as a film title. When does bad taste fade?

Article 3(1)(f) of Trade Mark Directive 2008/95 provides that

"(f) trade marks which are contrary to public policy or to accepted principles of morality"

shall not be registered, and 15 U.S.C. para 1052(a) of the Lanham Act in the USA provides that registration shall be refused to a mark which

"Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; ..."

How would the wording of these provisions be applied to these applications?

What do readers think?