Energy company Ecotricity has threatened to sue rival EDF over its “recycled” use of an all-green Union Flag logo. Nick Johnson runs the arguments up the flagpole – see if they fly.
Topic: Intellectual property
Who: EDF Energy, Ecotricity
When: July 2009
Law stated as at: 3 August 2009
Specialist green energy provider Ecotricity accused rival electricity supplier EDF of copying an all-green Union Flag motif that Ecotricity had apparently used in promotional material for over two years.
EDF had used a similar design in the context of its announcements for "Green Britain Day" in July 2009 – a sustainability initiative linked to EDF's 2012 Olympics sponsorship.
Ecotricity reportedly gave EDF until 4pm on 6 July 2009 to respond to its allegations or face legal action.
Why this matters:
Unlike some other countries, the United Kingdom does not generally restrict commercial use of the national flag – use on a marine vessel being a notable exception – or indeed variants of it. So there was no statutory reason why Ecotricity could not choose an all-green Union Flag as its motif.
Would Ecotricity be able to prevent EDF using a similar design? While the design is unlikely to have sufficient originality to benefit from copyright protection, and it appears Ecotricity had not sought trade mark protection, there must be at least an arguable passing off claim. A number of reports cite instances of eco-savvy consumers who were apparently misled into thinking that EDF had linked up with Ecotricity.
Further, to make matters worse from Ecotricity's point of view, EDF has sought to register as trade marks a number of device marks featuring the green Union Flag design. One features the words TEAM GREEN BRITAIN. Another says GREEN BRITAIN DAY. We assume Ecotricity is seeking also to challenge these applications.
Meanwhile, the ASA has reportedly received dozens of complaints about the EDF activity: in some cases on the basis that the ad misleading suggests EDF has strong green credentials (its electricity is predominantly sourced from nuclear power), in other cases on the basis of confusion with Ecotricity and in other cases for misleadingly suggesting EDF are British (EDF – Electricité de France – is French).
Any dispute would clearly be a golden PR opportunity for Ecotricity: a perfect chance to raise the profile of more eco-friendly energy options generally and of Ecotricity in particular. We look forward to following the various strands as this spat progresses.