Australia’s National Cancer Foundation refused trade mark registration for ’Brown Nose Day’ in NZ

Cure Kids objected against the trade mark over concerns it would be confused with Red Nose Day.

A proposed fundraising campaign to raise money for bowel cancer, titled “Brown Nose Day”, has been labelled poor taste by a trade mark commissioner.

The initiative, suggested by Australia’s National Cancer Foundation, intended to use humour to help raise money for colorectal cancers and piggybacked off the long-running and successful Red Nose Day, which raises money for children with cancer.

However, Cure Kids, which owns the trademark for Red Nose Day in New Zealand, did not want Brown Nose Day to be used and opposed the registration of the trade mark.

While it is unclear whether the foundation planned to promote the day in Australia or New Zealand, or both, it wanted to trade mark the name in New Zealand.

However, a recently released decision from the Intellectual Property Office of New Zealand (IPONZ) has ruled in favour of Cure Kids, finding that Brown Nose Day was too similar to the already-established Red Nose appeal.

Cure Kids was founded in 1971 and is the largest non-government funder of child health research. Each July it runs an appeal to raise funds for child health research, including into cancer, cystic fibrosis, inherited heart conditions, epilepsy and Sudden Infant Death Syndrome.

Red Nose Limited was established in Australia in 1977 and now co-owns the trademark with Cure Kids after a protracted fight over the mark made its way to the High Court in 2014.

Cure Kids and Red Nose Limited opposed the use of Brown Nose Day on the basis that it would cause confusion for its fundraising, was too similar and could offend the community, particularly Māori.

At an IPONZ hearing on the issue earlier this year, chief executive of Cure Kids, Frances Benge, said the charity spends roughly $284,000 a year on marketing for its Red Nose Appeal and has attracted a large public following which in turn raises a significant amount of money for child health research.

Chief executive of Cure Kids, Frances Benge. Photo / Supplied

Board co-chair of Fundraising New Zealand, James Datson, submitted that Brown Nose Day would be trading off the well-established Red Nose appeal, but using an offensive mark.

Datson said, in his view, potential donors would “be more likely to initially think that it is Cure Kids that has ill-chosen a derogatory symbol – possibly inadvertently – but sufficiently so for people to potentially decide against continuing support levels for Cure Kids”.

The National Cancer Foundation is an Australian cancer charity - not to be confused with New Zealand’s Cancer Society - and registered the Brown Nose Day trademark in Australia in 2020.

However, last year the Australian deputy registrar of trade marks revoked its registration after a complaint from a third party.

The foundation does not have a presence in New Zealand and its CEO, Josh Thompson, did not respond to questions from NZME about the purpose of registering a mark here.

Thompson did submit to IPONZ, however, that he’d devised the idea for a Brown Nose Day appeal to raise money for bowel cancer.

“This was because the concept of a ‘Brown Nose‘ brings up various, sometimes conflicting, images; and this gives the opportunity to use a mixture of humour and bluntness to raise awareness of colorectal cancers, and raise charitable funds to use to address the issues that arise from bowel cancer,” he said, according to the decision.

Thompson said the mark was unlikely to be confusing for consumers because as far as he was aware bowel cancer did not affect children.

The National Cancer Foundation called professor of marketing and research at University of New South Wales, Valentyna Melnyk, to give evidence.

Melnyk conceded that Brown Nose Day was “a confronting mark but not any more offensive than a number of other public campaigns and trade marks I have seen” and that if people were offended they’d simply donate to a different charity.

However, the assistant commissioner of trade marks, Wendy Aldred, KC, found that the marks were too similar and that Brown Nose Day would likely confuse consumers.

“Specifically, I consider that a consumer in New Zealand would be likely to wonder whether the Brown Nose Day mark was an extension of the opponents’ Red Nose Day brand,” she said.

Aldred also found that many people would consider Brown Nose Day to be in “poor taste” and there was a risk that it could tarnish the Red Nose brand by assumed association.

However, Aldred noted that the mark would unlikely meet the high bar for refusal of registration on that factor alone and primarily refused it because it was similar to Red Nose Day.

Cure Kids said that it would let the assistant commissioner’s ruling speak for itself.