With the Royal wedding of Prince Harry and Hollywood star Meghan Markle fast approaching, companies may be looking at leveraging the glamour of this event in their advertising and products and capitalising on the ‘Royal effect’.
Off with their heads?
The UK Royal family take protection of their intellectual property rights seriously. The UK Trade Marks Act 1994 specifically provides for Royal emblems; prohibiting use of Royal Arms in a way that implies authorisation by the Royal family. Such misuse is a criminal offence. The Act also prohibits use of any device, title or emblem in a way which implies that entity supplies the Royal family.
These provisions could capture certain use of Royal symbolism but this would not extend to use outside of the UK or to use inside the UK which, whilst it played-off the Royal family, might not actually imply a connection. For example, a clearly tongue-in-cheek advertising campaign or product line.
However, it must also be kept in mind that the Royal family itself has registered trade marks in the UK and other jurisdictions. As with the use of any ‘brand’, it would be advisable to check the relevant trade mark register before using any sign with Royal connotations.
In the UK, the law prohibits use of signs which are identical or similar to a registered trade mark and where they take unfair advantage of, or are detrimental to, the distinctive character or repute of that trade mark. Accordingly, use of Royal symbolism which is too close to a trade mark belonging to the Royal family may be an infringement, whether it be tongue-in-cheek, deferential or otherwise, and regardless of whether the use actually implies any authorisation by or official connection with the Royal family.
In terms of advertising, the Advertising Standards Authority (which regulates advertising in the UK) has specific guidance on the use of Royal symbolism in advertising. The Authority advises that members of the Royal family should not normally be shown in marketing communications without prior permission. However, very general references to Royal events may be acceptable, provided they do not stray into implying endorsement or affiliation with the Royal family.
So will I be sued?
There is some light here. The Royal family has previously implemented a ‘temporary relaxation’ of the rules relating to use of their intellectual property in the lead up to a Royal wedding, and the same has been done for the upcoming Royal wedding.
The Lord Chamberlain’s office has released official guidelines on how Royal insignia and photographs can be used:
Good taste: Souvenirs must be in good taste, free from any form of advertisement and carry no implication of Royal custom or approval.
Types of use: Royal insignia must not be used on textiles, including clothing, tea towels and aprons (with the exception of carpets, cushions, wall hangings and headscarves).
Photos: Royal photographs used on containers or packaging must be approved photographs of Prince Harry or Meghan Markle, and copyright of the official engagement photographs of the couple is held by the Royal family and cannot be used (i.e. copyrighted images may not be used).
It is also worth mentioning that whilst there are no ‘image rights’ as such in the UK, there are such rights in other jurisdictions such as the State of California. Therefore, reference to Ms Markle in particular may carry additional risks.
What should you bear in mind?
Whilst companies should consider the usual IP rules relating to copyright, passing off, image rights and trade marks when producing Royal wedding themed advertising and products, it appears that the young couple Prince Harry and Meghan Markle do not want to impose overly restrictive rules causing companies to lose out entirely on Royal wedding fever. Just don’t put them on a tea towel!
Joanna Conway on Norton Rose’s BrandProtection Blog