Sasha Borissenko: When companies go beyond poor taste

Studies show inaccurate and unfavourable images of people with mental illnesses lead to misconceptions and stigma. Photo / AP

COMMENT:

Nothing gives me more joy than shopping every Halloween and seeing the lengths costume companies go to to avoid copyright violations. It's not a smurf, it's a lady goblin. Super Mario brothers? Forget it, it's a 'plumber boy'. Wednesday Adams? Try 'scary daughter'.

I could go on ...

But beyond the ridiculousness there's cause to worry. You might see straightjacket costumes, with descriptions pointing to violence-related mentally ill patients. And what haunted house doesn't feature some sort of asylum stereotype?

While casually playing on stereotypes may seem harmless, studies show inaccurate and unfavourable images of people with mental illnesses lead to misconceptions and stigma. They contribute to confusion and misunderstanding about mental illness which, in turn, influence both the individual and the collective treatment of those with mental illnesses.

Studies show once populations have been identified as being "other" or "different", they are often collectively and individually subjected to labelling, negative stereotyping, prejudices, isolation, ridicule, loss of status, loss of dignity and loss of basic human rights.

For example, the news media's continued emphasis on interpersonal violence is highly disproportionate to actual rates of violence among those with mental illnesses.

A US study found in contrast to public perception, individuals with serious mental illness represent about 3 per cent of violent crimes, and in fact they are more likely to be victims of violent crime.

But where do you draw the line? Is it harmful to go 'Nutters for nuts'? There are 12 pages worth of incorporated companies that feature the word 'crazy', for example. But perhaps crazy is too commonplace, and no doubt the political-correctness-gone-mad brigade would scream bloody murder if I suggested it was stigmatising. In a bid to find some clarity let's look at the legal framework.

Under the Companies Act, the Companies Registrar must not reserve a name that, in the opinion of the Registrar, is offensive. According to the Companies Office website, a company can't have a name that is offensive, obscene, contrary to public policy or likely to cause offence to any particular religious group or section of the community.

An interesting example is the business called 'Obsessive Coffee Disorder'. There are certain names that are protected or are in breach of legislation. It is illegal to name a company Sea Ranger, Racing Conference, Physics and Engineering Laboratory New Zealand Soil Bureau, Laughing Owl, Insurance, Eagle Owl or Brownie, but it seems Obsessive Coffee Disorder is not illegal.

Arguably you could alternatively seek a remedy under the Fair Trading Act, as Obsessive Coffee Disorder is somewhat misleading. But it's a stretch to think a court - as opposed to the Registrar of Companies in this case - would decide as such.

On the issue of determining what meets the standard of offensiveness, A Ministry of Business and Innovation spokesperson said there have been no cases involving a decision by the Registrar of Companies regarding the reservation of an offensive company name relating to mental health.

The reservation for a company called 'HAPPY TO SIT ON YOUR FACE LIMITED' was rejected, for example. However a later name reservation application for 'HAPPY TO SIT ON YOUR FACE SUNGLASSES LIMITED' was received and accepted, the spokesperson said.

What meets the standard of offensiveness? Photo / File

Under the Consumer Guarantees Act, there is no specific guarantee that products or services must not be offensive. Instead the Act demands that goods be of acceptable quality, fit for purpose, matching the description, and being of a reasonable price.

In a trademark/copyright context, the Trade Marks Act is a decade younger than the Companies Act, and interestingly it gives more detail around offensiveness. The Act prevents registration of marks which would, in the opinion of the Commissioner of Trade Marks, be likely to offend a significant section of the community.

According to the Intellectual Property Office of New Zealand, the mark has to be beyond poor taste, and where a significant section of the community would likely feel it would undermine 'current religious, family, and social values'.

In practice, we've seen uproar around the misappropriation of Maori culture - Air NZ bearing the brunt of this over it's attempt to trademark a design-specific 'Kia Ora' recently. And who could forget the social media campaign #KimOhNo that sought to ban Kim Kardashian's shapewear line titled, Kimono? She may have changed the name voluntarily, but the US Supreme Court ruled that a federal ban on registration of immoral or scandalous trademarks was contrary to the First Amendment right to free speech in June of this year.

Free speech, that old chestnut. Rather than entertaining the idea that names can't be harmful, 'it's just words', 'boys will be boys', and that we're all snowflakes, instead I'm going to leverage this 'fundamental right' to discuss the bill of rights framework.

A Mental Health and Human Rights discussion document from the Ministry of Health in 2017 explored the alignment between the Mental Health Act and human rights obligations under the Bill of Rights Act and the Convention on the Rights of People with Disabilities (CRPD).

The CRPD encompasses the human rights of people who have 'long term mental impairments', which has been generally understood to include mental ill health or psychosocial disability. In the past the focus has been on impairments of people, but the CRPD has widened this understanding to include the barriers faced by people with disabilities, including those with mental ill health.

So can we take Obsessive Coffee Disorder to the Human Rights Commission? If it were plastered on a shirt or the name of a company you could argue that on the grounds of disability discrimination it could fall under the provision of goods and services. However, under the Human Rights Act, it would fail as the owner/service provider would have to fail on demand to provide those goods or services, or treat any other person less favourably. In this case it's not the person who's discriminating against the mental health community, it's the merchandise. Free speech reigns supreme for now, but this may all change if hate speech is incorporated into the human rights framework.

For now, with Christmas soon rearing its ugly head, I'm not looking forward to seeing 'Obsessive Christmas Disorder' in various stores around the country.

Disclosure: Sasha Borissenko works in the mental health sector. If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com