With the royal nuptials just a few months away, advertisers might be tempted to borrow a little princely goodwill for their own brand. But danger lurks in those Wills/ Kate references or innuendoes and not just from the point of view of the ASA-enforced CAP and BCAP Codes, as Nadine Seymour reports.
Topic: People in advertising
Who: Prince William & Kate Middleton
Where: Westminster Abbey, London
When: 29 April 2011
Law stated at: 1 December 2010
It would be hard to have missed the announcement that Prince William and Kate Middleton are to marry at Westminster Abbey on Friday 29 April 2011. The Government announced that the day would be a public holiday; creating a four day weekend with the May day bank holiday on the Monday. Already promotional activity has commenced and there are various plates, pictures and promotions on offer to celebrate the newly engaged couple’s happiness and the long weekend.
Within 24 hours the Advertising Standards Authority had issued guidance, stating that advertisements should not claim or imply that the Royal family has endorsed or is affiliated with the product or service advertised when it is not. Also, members of the Royal family, Royal Arms or emblems must not be used without permission from the Lord Chamberlain’s Office.
In 2005 the ASA upheld a complaint against an advertiser who had included photographs in their leaflet of members of the Royal family who had been their customers. The ASA held that including the photographs suggested an endorsement by the members of the Royal family which they had not consented to (see Ref. 40581: M Llewellyn t/a DFD Advertising).
Image & Name use of the happy couple
Specific members of the Royal family, including Prince William, are listed as members that cannot have their image used without prior permission from the Lord Chamberlain’s Office. The Lord Chamberlain’s Office guidance states that the use of Royal images is not permitted for advertising other than as used in accordance with the ASA’s issued guidance, which is set out above. Further, the Queen has already stated that she will be ensuring that Kate Middleton’s privacy is protected in the run up to the wedding.
Otherwise, use of Prince William’s and Kate Middleton’s names and images are subject to standard legal restrictions. Photographs or artistic renditions will be subject to permission of the copyright owner. Use of either’s name is acceptable so long as not used in a way to suggest an endorsement or affiliation.
Royal Arms, emblems, etc
Under s.99 of the Trade marks Act it is a criminal offence to use the Royal Arms or deceptively similar designs in such a way as to lead to the belief that the user is authorised to do so. Its is also an offence to use any device, emblem or title in such a way as to be calculated to lead the belief that the user is employed by, or supplies goods or services to, any member of the Royal Family.
Use of words that include ROYAL may be restricted where the goods or services that they are used in relation to may be of a certain class associated with the Royal family, for example fine quality porcelain or luxury goods. However, on everyday products not associated with the Royal family this may not be an issue, for example a fluorescent safety jacket.
It is not possible to register a trade mark using ROYAL, the Royal Arms, emblems or the name of a member of the Royal family without permission. A trade mark examiner may exercise his discretion in granting a trade mark that contains such an reference.
Misleading use of Royal names, images or insignia may also, depending on the circumstances, give rise to offences under the Consumer Protection From Unfair Trading Regulations 2008.
Where is the risk from?
To evaluate the risks involved in making references to the wedding or individuals involved, it would be important to consider where the risk of enforcement comes from. The ASA would normally require a party to bring a complaint to investigate although it is able to bring complaints itself, and Trading Standards may choose to investigate. However, the size and impact of the advertisement will influence such a decision.
Use of photographs may be subject to privacy claims by the individuals concerned or the Lord Chamberlain’s Office. Ms Middleton successfully prevented circulation of photographs of her in January 2010 on the grounds of breach of privacy. Further, the Lord Chamberlain’s Office could authorise a party to bring a claim for infringement for deceptive or misleading use of a device, emblem or title under s.99 of the Trade Marks Act 1994.
The couple’s current stance is that the wedding is to be a party and day for national celebration. Too much in the way of enforcement activity would have a negative effect on the publicity surrounding the wedding. Therefore, it is likely that a careful strategy will be adopted when bringing actions against advertisers who have fallen foul of any of the above restrictions
Why this matters:
It is clear that referencing the happy couple’s nuptials as a way or reason to have a special promotion is acceptable, but be careful when producing items designed to commemorate the day. Consider how advertisements are phrased to ensure that there is no express or implied Royal patronage or affiliation unless you have permission to do so.