As Her Majesty the Queen reaches 70 years as Head of State and celebrates her Jubilee this summer, it is clear that brands (particularly British brands) will want to celebrate this landmark milestone. To do so, brands will need to consider how they can celebrate without giving rise to liability or falling foul of advertising regulations.
In this insight, we give a brief overview of the legal landscape and some advice/signposts to assist brands looking to celebrate the Jubilee in their own communications.
What legal rights should brands be aware of?
Registered trademarks give an exclusive right to prevent third parties using:
- a mark that is identical with the trademark in relation to identical goods and services; and
- a mark that is identical or similar with the trademark in relation to identical or similar goods and services where there is a likelihood of confusion.
In addition to the above, the Trade Marks Act 1994 provides that third parties shall not use the following, in connection with any business, without the authority of Her Majesty (on in the case of (2) the member of the Royal family):
- the Royal Arms (or arms so closely resembling the Royal Arms as to be calculated to deceive); or
- any device, emblem or title in such a manner as to be calculated to lead to the belief that he or she is employed by, or supplies goods or services to, Her Majesty or that member of the Royal family.
Further, the Trade Descriptions Act 1968 is clear that it is an offence to, in the course of business, give any false indication that goods/services are supplied or approved by Her Majesty or any member of the Royal Family.
Along with any rights to take action as above, there is also the possibility of a member of the public or competitor submitting a complaint for breach of the UK advertising codes - the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and the UK Code of Broadcast Marketing (BCAP Code). For example, the codes include rules prohibiting misleading advertising and rules pertaining to the depiction of the Royal family and the use of Royal Arms or Emblems in advertising. In addition to the general rules, the Advertising Standards Authority ("ASA") has also recently issued guidance on how brands can "make it a compliant Jubilee". Care should be taken, for example, to avoid implying an official endorsement from Her Majesty or the Royal family (if one does not exist) or that a product is official memorabilia if that is not the case.
Some practical points to consider
- DO check for any registered trademarks first.
- The Royal Family has released an official emblem to celebrate The Queen's Platinum Jubilee. DO use this official approved emblem and follow the usage guidelines. The guidelines are relatively vague in terms of describing where the official logo can be used, however, they do specifically refer to commercial purposes and advertising.
- DO NOT re-draw or amend the emblem or create a new emblem.
- DO NOT use any Royal Arms without permission.
- DO follow the Lord Chamberlain's Office guidelines around the use, for commercial purposes, of the Royal Arms, Royal Devices, Emblems and Titles and of photographs, portraits, engravings, effigies and busts of The Queen and Members of the Royal Family.
- DO make it clear that this is your advertisement.
- DO NOT make any suggestion of a link between yourself and the Queen or the Royal Family. In particular, DO NOT make any suggestion that your goods/services are supplied or approved by the Queen or the Royal Family.
- DO consider first asking for permission – in particular, DO NOT feature the Royals without permission.
- DO comply with the ASA's general advertising rules, and DO review and comply with the ASA's Jubilee guidance.
- DO be aware that a complaint could be made to the ASA about your advertising. Upheld complaints are often accompanied by negative PR and you will be required to remove the advertisement(s) and prohibited from using it again, which may have cost implications (e.g. the costs of taking down ads and replacing them, wasted costs and opportunities, etc).
- DO seek advice if you are unsure – either from the Gowling WLG Brands, Advertising & Designs team or from firstname.lastname@example.org
If you have any questions, please get in touch with Kate Swaine, Kate Hawkins or Zoe Pearman.
 s99 Trade Marks Act 1994
 s12(1) Trade Descriptions Act 1968