Hit or miss: a brief analysis of the Brazilian system for rejecting ‘offensive’ trade marks and why it should not remain this way

Abstract

Trade mark laws all over the world commonly prohibit the registration of words and images that are considered ‘immoral’, offensive, shocking, scandalous—and several other adjectives statutes commonly employ.1 At the same time, such legislation rarely provides a definition of morality that lends transparency to the process of assessing offensiveness. As a result, authorities frequently resort to conducting preponderantly subjective registrability analysis when there is doubt surrounding the ‘tolerability’ of the message contained in the trade mark from a morality standpoint. After all, what one or another IP professional finds inoffensive may be perceived by a trade mark examiner, a judge or any other interpreter as being, somehow, intolerable enough to justify refusal of protection. The opposite situation is also possible, with an authority not finding any problem with what counsel or other hired agent believes will set off every ‘offensiveness’ alarm throughout the examination process. Current Brazilian trade mark...