05-Apr-2021
written by: Rana Moustafa
The protection of trademarks is of an essential procedural step to every business owner. Despite the enhancement and development of Intellectual Property Laws around different legislative systems, some contexts and circumstances remain unraveled or are treated superficially.
If every trademark is targeted to be protected, some trademarks remain despicably unprotected or disregarded because they are characterized as “offensive” in certain countries as we will explain, they are considered more specifically “offensively morally harmful”.
We will tackle the main question of principles and the reasoning behind the non-protection of such trademarks in order to shed the light on when a trademark is considered offensive. Specifically, we will present the Qatari legislation’s perspective towards offensive trademark which will be undertaking a wider overview of Islamic States’ reasoning and perception of offensive trademark.
In the State of Qatar, Trademark Law refers to the Islamic Sharia principles like the majority of the Laws in GCC.
The words “morals” and “ethics” are expressly stated in the Constitution of Qatar. Whereas part two is dedicated to “The Guiding Principles of Society”, specifically Article 21 provides that “the family is the basis of the society. A Qatari family is founded on religion, ethics, and patriotism” and high morals according to Article 18.
This reasoning is cherished when registering a trademark in Qatar or in the GCC countries in general. The reasoning goes back to the fact that for the society, the religion rises above all and should be a main reference and a compass for what is wrong and right, publicly, and morally accepted in the State.
Some moral exclusions applied in the State of Qatar that considers some trademarks or their subject as offensive. The rationale behind this exclusion is based on three main justifications.
However, certain trademarks are not deemed to be registered for reasons that are not particularly related to an offensive context as explained in Article 8 of the Trademarks Law No. 9 of 2002.
A trademark is considered offensive when:
I] the public concerned would be offended by the mark
This might be the case when the trademark designed may be recognized as “scandalous” for some goods and services.
This particularly concerns the threshold of the shock and offense that could be amassed by the public in a State.
In fact, two main elements are taken into consideration when examining this context and they are the intensity of the offense and its impact. However, this might be a highly divergent method in certain countries such as Qatar for example when the public are formed of different nationalities or in some countries like Saudi Arabia that do not recognize other religions except for Islam. Some trademarks would be offending certain public but the State in some situation may not resort to banning it since concretely the State does not recognize the subject of offense.
II] The mark has a power to erode the morals of society
Trademarks rejected on morality grounds cannot be used in the GCC. This signifies a clear-cut approach to preventing immoral trademarks from flowing into society.
III] The mark is contrary to the values of the society and wasting State resources
There is nothing to suggest that this notion of wasting state resources on undeserving trademarks features at all among examiners in the GCC. This may be because these legal systems are relatively young and trademark officials are not yet inclined to question the role of trademark registers in society. It could also be because the GCC States are legislating morality. This is supported by the prohibition on use of the disallowed sign.
This category of marks, like marks with religious connotation, engages the idea of ‘public order’. This may be a crude symbol that was once used for offending the emotions or psychological wellbeing of a group or a phrase that has long held negative connotations.
In conclusion, offensive trademarks can be rejected or prohibited for several reasons according to the trademark office, Nevertheless, the foundation for this prohibition is essentially based on any breach or violation of public order or moral norms in the State.