23 March 2020

Trade marks trading on pandemic; opportunism or entrepreneurship?

Our world is in the midst of a crisis – businesses and individuals are struggling to adapt to a situation that is ever-changing and has no end in sight.

The recent enforced closure of restaurants and bars, for example, has meant some of these businesses have chosen to diversify, for example by offering delivery services.

Others have seemingly chosen to use the pandemic as a new business opportunity.

In recent weeks, trade mark applications incorporating the words COVID-19, CORONA or CORONAVIRUS have been increasing. These marks have been applied for, by a number of different applicants, to cover a variety of things such as clothing, diagnostic equipment, drinks, cleaning services and games. Examples being applications for “KEEP CALM AND CORONAVIRUS ON” and “I SURVIVED COVID-19”.

Unethical trade marks

Should a pandemic that has devastated lives, and continues to do so, be exploited for commercial gain?

Should such trade mark applications be refused on ethical grounds?

As with all areas of law, the Trade Mark Act 1994 provides a set of rules and regulations to govern the use of trade marks and it does state:

‘A trade mark shall not be registered if it is contrary to public policy or to accepted principles of morality.’

However, what is considered ‘contrary to accepted principles of morality’ is undefined. Historically this has referred to trade marks incorporating offensive words such as swear words or those deemed to be politically incorrect, but in recent years examiners have been more lenient towards such applications.

So far only a handful of these pandemic-related applications have been accepted, an example being “CORONASTOP” for vitamin supplements. Going forward it will be interesting to see what stance Intellectual Property Offices will take with these, arguably, bad taste applications.

Furthermore, it will be interesting to see how successful these ventures are. Entrepreneurship is commendable, and often necessary, particularly in times of economic hardship, but let’s hope this is not at the expense of acceptable levels of decency and ethical values.

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About the Author
Emma Kirkpatrick, CITMA Paralegal & Trainee Trade Mark Attorney

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