CBC News reports on a recent Canadian Federal Court decision in a trademark dispute over the sailor-appropriate mark F--K CANCER. The petitioner in the case, “celebrity activist” Yael Cohen, began using the mark F--- CANCER in 2009 in connection with apparel and a charitable foundation devoted to cancer detection and prevention. Cohen applied to register the F--- CANCER mark in Canada, but was opposed by Susan Fiedler, who has been using the essentially identical mark F--K CANCER as a common-law trademark since 2008 as a slogan for charitable fundraising for cancer research. The Canadian Trade-Marks Opposition Board sided with Fiedler based on her earlier date of first use, and refused registration of Cohen’s F--- CANCER mark.
Cohen then appealed TMOB’s refusal to Federal Court, but interestingly, she did not contest any of the TMOB’s findings. Instead, she advanced the novel argument that Fiedler could not have any enforceable rights in her F--K CANCER mark because the word “f--k” is obscene, and therefore unenforceable under Canada’s prohibition against the use of scandalous, obscene, or immoral terms as trademarks (for an earlier post about an applicant getting “FUCT” over a similar prohibition in the U.S., click here). In its decision declining judicial review and upholding the Board’s refusal, the Court noted that Cohen’s new argument was “one that was never put before the TMOB, and one which, had it been accepted, would have been fatal to her application for registration.” Cohen’s apparent goal at that point was not to secure registration of her own F--- CANCER mark, but rather to prevent Fiedler from being able to stop or restrict Cohen’s use of the mark. Her argument, in other words, was that both marks are f--cked with respect to enforceable rights. Sadly for Cohen, the Court’s answer was “no, just yours.” Read the full article here, and the Court’s opinion here.
Reposted from CBC News.