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Trade mark victory for the Queen

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

The IPKat has come across a rare instance of a mark being refused registration because of the inclusion of a crown, contrary to Sections 4(1)(d) and 4(2)(a) of the Trade Marks Act 1994.

The Combined Armed Forces Federation, a trade association for members of the armed forces, applied to register a mark (right) consisting of the words 'THE COMBINED ARMED FORCES FEDERATION EST 2004', together with a Union Jack featuring a crown in its centre. The registration was opposed by another armed forces trade association, the British Armed Forces Federation. Instead of arguing that there would be confusion with its operations, the BAFF argued that the logo included the Royal crown (a problem in itself) and as a consequence suggested Royal patronage. Additionally, the use of the Union Jack suggested authorisation by the either the armed forces or the British Government.

The opposition succeeded. Following its initial filing of the mark, the CAFF had, on the advice of the IPO, written to the Lord Chamberlain, seeking permission to use the Crown in its logo. The request was refused, but the Lord Chamberlain provided the CAFF with examples of alternative crowns, less similar to the Royal crown, which could be used. The CAFF adopted one of these other crowns. However, according to Mr Hearing Officer Salthouse, this was not the end of the matter. The use of the crown could still be blocked in case consumers would think that the crown depicted was the Royal crown. While consumers would not know what the Royal crown looked like, and so would not take the crown to indicate Royal patronage, the combination of the Union Jack, the crown and the words 'Armed Forces' (the armed forces being a state body) could mislead the average consumer into believing that the CAFF had Royal Patronage, or was an organ of the state. While the Lord Chamberlain had permitted the use, he did not have any expertise in trade mark issues, and did not have to consider the same criteria as the Hearing Officer.

The IPKat notes that this is a neat demonstration of the fact that, although the Lord Chamberlain's main concerns are to protect the property of the Queen, and also perhaps her reputation, the Registry maintains a role to protect consumers from being confused (although Merpel pipes up, hasn't the Registry limited this role with the changes to relative grounds examination, since it leaves it for trade mark owners to decide whether to oppose confusing marks?)

Full post as published by IPKat on September 02, 2009 (boomark / email).