Target or Tar-Jay?

January 25, 2016 Published by

Australians love their nicknames. Petrol Stations have been called Servos, St Vincent DePaul is often referred to as Vinnies and McDonalds is better known as Maccas. If you ask an American if they wanted to go to “Maccas” you would be greeted with a blank stare. These affectionate nicknames are culturally associated with the Australian public.

Target is a chain of department stores that sells homewares, clothing, footwear and other general merchandise. It is recognised by consumers as offering affordable goods and has been colloquially referred to as Tar-Jay (in a French accent) to make it sound more upmarket than it is. In 2008 “Tar-Jay” was officially added to the

In the recent decision Target Australia Pty Ltd v Pty Ltd [2015] ATMO 54 the use of a trade mark as a parody was considered. Mumgo Pty Ltd (a subsidiary of CatchOfTheDay) applied to have the composite mark TARJAY registered. Mumgo is an online retail store that sells baby clothes. It defended its registration of TARJAY stating that it was meant to be a parody and was a ‘cheeky’ reference to Target, believing it would not mislead or deceive consumers. The hearing officer did not agree and held that the use of such a trade mark would indeed confuse customers.

The case provided an opportunity for the court to discuss the meaning of a parody. It was established that each case should be considered on an individual basis. The hearing officer did identify two guiding principles – drawing attention to the case Southcorp Ltd v Morris McKeeman [2006] ATMO 48, where it was identified that a parody must be immediately seen by the public as distinct from and not originating from the owner of the original., or to imply any connection with or endorsement by it. His Honour then looked at Nike Inc v “Just Did It’’ Enterprises [1993] USCA7 1181; 6 F 3d 1225 to assert that the trade mark should not confuse the public but rather be of amusement.

This case emphasises the difficulty of proceeding with a parody mark and also acts as a reminder for businesses to protect the value that may come from nicknames ascribed to them by the general public.

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