Shock marketing reached new lows with MH17 trademarking

Just hours after MH17 crashed into fields in eastern Ukraine, a mysterious Malaysian company filed an application with authorities in Australia to trademark the doomed plane’s flight number. If accepted, this would give the company exclusive rights to use “MH17” in films, game shows, musicals, video games and music within Australia.

As this was, from the outset, a particularly high-profile crash, and an especially rapid instance of ghoulish money grabbing, people sat up and noticed. But this isn’t the first instance of distasteful marketing practice. This particular form of disaster branding has been around for a while now, and isn’t going anywhere soon.

In this case, it is likely the application will be rejected. We won’t see “MH17: the video game” just yet. Not only could Malaysia Airlines object to the application by relying on its own earlier rights to the sign, the Australian trademark office could also raise public policy issues. Indeed, scandalous and immoral trademarks are banned from registration in Australia as well as in many other jurisdictions including the US, the UK and the EU. The US trademark office recently used this law to cancel six registrations for the sign “Redskins” as it was considered disparaging towards Native Americans.

Attempts to obtain the registration of trademarks by exploiting the fame of criminals, dictators and criminal organisations are not new. In the EU, for example, trademarks which remind consumers of terrorist organisations or authoritarian regimes have been refused. An import/export company was refused the trademark “Bin Ladin” for its business. The company’s argument that the application was filed four months prior to the 9/11 attacks and therefore was not meant to recall the similarly-named founder of al-Qaeda was dismissed. Indeed, the Islamist terrorist was known to the public before the September 2001 attacks.

Similar decisions have also been taken elsewhere. In the US, the trademarks “al-Qaeda” “Baby al-Qaeda” and “Obama bin Laden” have all been refused. The Hungarian trademark office refused to register the sign “Stalinskaya” due to the link with Soviet ruler Josef Stalin. And in Japan, Hitler-themed pinball machines didn’t make it past the trademark office. Japanese trademark legislation bans the registration of signs likely to disrupt to morals and public order.

Most jurisdictions in the world ban the registration of such unacceptable trademarks – yet there is no possibility of a trademark being banned globally. National and regional trademark offices reach their decisions independently. That is also why decisions from different offices are inconsistent and sometimes difficult to reconcile. After all, judges and examiners are human beings and might have different sensibility towards certain topics, including violence-related messages conveyed by certain brands. For example, the names of other cruel dictators including Dada (short for the infamous Uganda dictator of the 1970s, Idi Amin Dada) have been granted registration in the EU.

There is a certain grim logic behind these trademarking attempts. As margins shrink, businesses are employing increasingly aggressive marketing to attract and keep customers.

Banning the registration of such immoral trademarks aims exactly at preventing these attempts to shock: indeed, if the Malaysian company in question were allowed to register the sign MH17, they would acquire monopolistic rights on it and would be able to extract royalties. No doubt this would be a slap in the face to the relatives and friends of the many MH17 victims.

Author

1. 

   Enrico Bonadio

   Senior Lecturer in Law at City University London