VOLSTEAD PTY LTD

This matter concerned an application by VOLSTEAD PTY LTD for registration of the trade mark "Pingers" in class 33 for spirits. The application was initially examined and an adverse report was issued on the grounds that the trade mark was scandalous under section 42(a) of the *Trade Marks Act 1995* (Cth), as "Pingers" is a colloquial term for the illegal drug MDMA, and its use in relation to alcoholic beverages could be seen to promote or endorse the consumption of illicit substances.

The delegate of the Registrar of Trade Marks was required to determine whether the trade mark "Pingers" was scandalous within the meaning of section 42(a) of the Act. This involved considering the ordinary meaning of the word, its potential slang meaning, the nature of the goods for which registration was sought, and the likely impact on a significant subset of the Australian population aware of the slang meaning. The delegate also had to consider the presumption of registrability under section 33 of the Act, which requires the Registrar to accept an application unless satisfied that grounds for rejection exist.

In reaching its decision, the delegate noted that while "Pingers" has a dictionary definition relating to sound-emitting devices, it is also a recognised colloquial term for MDMA. However, the delegate found that the mere use of the trade mark in relation to spirits would not cause a significant degree of disgrace, shock, or outrage to the extent required to be considered scandalous. The delegate reasoned that, similar to other trade marks for alcoholic beverages that incorporate slang terms for drugs, the use of "Pingers" would not be interpreted as promoting or endorsing the consumption of MDMA. While acknowledging the trade mark might be considered in bad taste by some, the delegate concluded this was insufficient to trigger section 42(a). The delegate also considered that many ordinary English words have been appropriated as slang for drugs and are registered as trade marks for alcoholic beverages, such as "XTC" and "Decadence".

As the delegate was not satisfied on the balance of probabilities that a ground for rejection under section 42(a) existed, the application for the trade mark "Pingers" was accepted for possible registration.