By Justice William W. Bedsworth
Intellectual property law is not my long suit. In fact, you may have heard it suggested that I might be a little short-suited on intellectual property itself.
So I can’t say I was real excited when my son told me there was an Australian intellectual property case I just had to read. Really? Australian intellectual property law?
I have enough trouble keeping up with American law.1 I try not to publish much because I figure the more cases I publish, the more law there is to learn.
So branching out into antipodean law just seemed like walking into a biker bar for no good reason. “Hey, Dad, here’s some more stuff that you can be baffled by,” was not the kind of invitation designed to set my heart atingle.2
But I may have misjudged this one . . . so to speak. The Aussie case presents a problem I’ve never seen before, and my response to it kinda surprises me. I may actually be siding with the grownups on this one.
I don’t usually do that. I’m not yet a “You-kids-get-offa-my-lawn” kinda guy. I’m still a lot more likely to suggest people “lighten up” or “chill” than I am to shout, “Turn down that music!” I’m still surprised when I realize I’m not the target audience of the Jack in the Box and Carl’s Jr. commercials.
So I was a little taken aback when I found myself thinking the Australian government should have taken a stricter position against free speech in this case. It was kinda like hearing myself complain that a movie had too many scantily clad young women.
Here’s the deal. An Australian snack food company applied for permission to market their product as “Nuckin Futs.” They were rejected. As explained by the Melbourne Herald Sun, “The Trade Marks Examiner ruled that Nuckin Futs was an ‘obvious spoonerism’3 and deemed it ineligible for registration under section 42 of the Trade Marks Act.” In short, they decided the name was crass and indecent, and should not assault the eyes or vibrate against the eardrums of Australians.
I had no strong reaction to that decision, one way or the other.
I will admit to being a little tone-deaf on the issue of profanity. My mother grew up with Emily Post, place settings that included two forks and two spoons, and men who moderated their speech in the presence of women. But Dad was a marine paratrooper whose first high school graduation was mine.
He had worked in the fields as a boy, voted dead people’s names for Harry Truman’s minions while still in grade school, and spent more time in the brig than on the parade ground. By the time he met Mom, his vocabulary was pretty fully formed . . . and pretty full.
Mom did what she could, and Dad, to his credit, cleaned up his act pretty well. But profanity was still a natural part of my boyhood home and the blue-collar neighborhood in which I lived. I’ve never been especially uncomfortable with it, and my personal thesaurus includes a lot of words Mom would not have approved.
So I wasn’t offended by the snack food company’s product name, but neither was I throwing rocks at the Trade Marks Examiner for refusing to allow it. While I probably wouldn’t have gone so far as to call it “scandalous” and “offensive”—as he did—I couldn’t really get worked up about his decision.
Seemed like dog-bites-man news. Hardly seemed like news at all, in fact.
So imagine my amazement when the Trade Marks Examiner reversed himself.
That’s right. Aussie solicitor named Jamie White appealed the ruling on the basis that, “‘Nuckin Futs’ [is] not offensive because it is commonplace in everyday Australian language.” He contended the words “f . . .” and “f . . . ing” were “now part of the universal discourse of the ordinary Australian.”
And the Australian government bought it. After a year-long appellate process, they decided—well, apparently they decided that Australians were crass and indecent and the mark rather suited them. It was registered in April.
The only restriction is that the snack food folks had to agree not to market their product to children. They have assured the Australian government that the nuts will be sold only in pubs, nightclubs, and “other entertainment venues.”4
So if you go to Australia—and visit a pub or nightclub5—you can buy Nuckin Futs.
To go with your Buckin Feer.
I have never been to Australia. But, as I am myself a descendant of deportees, I have always felt a kinship with them. And they invented Australian Rules Football,6 which convinces me they share my affection for absolute lunacy. They seem like my kind of people.
But I wonder if they haven’t gone a little far in coarsening the public discourse this way. I mean, can’t you just hear the pub-goers next month, “Hey, Mate, bring me some Nuckin Futs while we watch the Uckin Folympics on the tuckin felly.”
This is gonna get way out of hand.
And the whole idea that you can keep this away from the children by requiring the product to be marketed in adult venues seems uncharacteristically naïve. There’s a place for the delightful Australian optimism which is such a big part of their national charm, but I don’t think this is it.
You just know the little nippers7 are gonna tumble to this pretty quickly. Hell8, this is an idea guaranteed to appeal more to the kids than it does to the adults. Grown-up Australians may well choose their snack foods based on taste and price, but no 12-year-old is going to pass up a chance to order Nuckin Futs even if they cost five bucks and taste like Duckin Firt.
And I’m a little disappointed that the Australian government has essentially thrown in the towel on the fight against vulgarity. Really, Australia? That word has become part of the “universal discourse of Australians”? Really? Universal?
Not my call, of course. Given the actions of my own government of late, I’m really not in a position to question someone else’s. And since I sometimes use the adjectival form of that word myself, I’m living in a Huckin Glass Fouse, here. So I won’t be casting any stones.
But somehow, I expect major world governments to exercise more restraint than I do. Dang9, what good is a government if its standards aren’t higher than mine?
So I would have gotten this one wrong. I would have turned down the trademark. I would’ve yelled at the snack food people to get off my lawn and to take their Nuckin Futs with them.
And—apparently—Australia would have told me to chill.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org.