Cartel kingpin El Chapo thwarted red-cheeked authorities yet again and escaped from a Mexican Prison. El Chapo’s honchos tunnelled a hole stretching directly into El Chapo’s cell, fitting the tunnel with an undetectable tracking system to ensure a quick escape for the high-security prisoner. Smashing tunnel bulbs and discarding a prison identity bracelet, El Chapo emerged for a few brief months of freedom before being captured yet again by Mexican authorities in late 2015.

In an unexpected twist, El Chapo is reportedly considering making a feature film exploring his life and times. Although discussing the moral issues of a man who admittedly killed hundreds wanting to make a feature length biopic falls outside our scope, we can explain some of the arising intellectual property issues. 

El Chapo and Trade Marking

El Chapo’s family has attempted to trade mark ‘Joaquin “El Chapo” Guzman’ to allow them to emblazon his name on a range of different merchandising material – clothing, watches, even walking canes. This isn’t the first time El Chapo or his representatives have tried to trade mark. Over ten attempts have been made in the past, and the Mexican Institute of Industrial Property (IMPI) has rejected them all. IMPI rejected the latest attempt on the basis that El Chapo was a wanted man and so could not trade mark his name.

El Chapo’s case raises interesting questions. Is it possible to trade mark a person’s name? What are the benefits? Can an application to trade mark be rejected on the grounds of the applicant’s character?

Can I Trade Mark my Name?

Of course! It’s entirely possible to trade mark your name in Australia. Dita Von Teese has one for her line of lingerie and perfumes, and Bettina Liano has one for her new fashion label.

What are the Benefits of Trade Marking my Name?

Repeat after me: Reputation. Reputation. Reputation. And trade marking is essential to preserve yours. If you’re an artist, an actor or anyone involved in the creative world, your reputation is everything. Trade marking your name helps you secure your name, allowing you to use it exclusively and build your brand. 

Can a Trade Mark Application be Rejected on the Basis of Character?

The Trade Marks Act 1995 (Cth) governs applications to trade mark. IP Australia can reject an application, for example, on the basis that it is not capable of distinguishing the relevant goods or services (section 41) or that is is scandalous (section 42). In Australia, an application to trade mark cannot be rejected on the basis that a person was on the run from police.

Key Takeaways

If El Chapo tried to trade mark his name in Australia, he might have better luck with IP Australia than the Mexican Institute of Intellectual Property. Australia’s trade mark legislation doesn’t reject trade mark applications on the grounds of ‘convicted criminal’ (although he may have to battle rejection for reasons of public policy).  El Chapo’s attempts to trade mark highlight that if protecting a name is important enough for a cartel kingpin, it’s important enough for an aspiring artist.

Questions about trademarking? Get in touch. 

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Chloe Sevil

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