COVID-19 as a Trade Mark in Australia: Issues and Implications

Abstract

In the past, well-publicized adverse events have triggered surges in “tragedy” trade mark applications for signs such as “9/11” or “MH370”. Unsurprisingly (as at 31 March 2020) there were 57 trade mark applications for the word “COVID-19” across trade mark registers across the globe. In Australia, these types of marks face a variety of legal hurdles that may prevent registration. These include the question of whether the mark is “distinctive” and the bar against “scandalous” marks. This article discusses how “COVID-19” (and other tragedy related trade marks) challenges the boundaries of these rules; the likelihood of COVID-19 being registered; and whether Australian law should change to expressly proscribe against “tragedy” trade marking.

Keywords: Trade Mark, Trademark, Tragedy Trade Mark, COVID-19, Scandalous Trade Mark, Distinctive, Capable Of Distinguishing, Australian Trade Marks, Trade Marks Act 1995 (Cth), Australian Trade Mark Examiner’s Manual, Australian Trade Mark Office.