Faced with the legal minefield of referencing the London Olympics in ads, UK advertisers who are not official sponsors may turn to the Diamond Jubilee as a safer area for borrowed goodwill. But are the royal festivities easier meat for advertisers? Thomas Spanyol checks CAP copy advice, Lord Chamberlain’s guidelines et al.
Topic: “Inspired by” advertising
Who: Committee of Advertising Practice ("CAP"), Lord Chamberlain's Office
When: 12 March 2012
Where: United Kingdom
Law stated as at: 30 March 2012
What happened:
Aside from the Olympics, the other big event of 2012 is the Queen's Diamond Jubilee and astute advertisers and marketers will be looking out for opportunities to capitalise on this. The Lord Chamberlain's Office ("LCO") has issued guidelines for the production of souvenirs which temporarily relax the rules surrounding the use of Royal Symbols on souvenirs – more on this later. Despite this, the rules concerning the Royal Family and advertising and marketing in general have not been relaxed, so in order to assist advertisers and marketers the CAP has helpfully issued a one-page copy advice guide.
THE CAP GUIDANCE
Endorsements
The CAP guidance reminds marketers that advertising should not claim or imply that a particular product is endorsed by the Royal Family when it is not. This is in line with the general provisions on misleading advertising in the CAP code. Marketers should ensure they gain written permission before implying personal approval of any product by a Royal – failing to do so could provide the implicated person with a legal claim (as per rule 6.1 of the CAP code).
The guidance reiterates the position in rule 6.2 of the CAP code that members of the Royal Family should not be mentioned or shown without their prior permission. Nor should advertisers claim that their product has any form of royal endorsement unless this has been confirmed or verified in writing. The ASA has upheld complaints regarding Royal endorsement in the past, for example when a paintballing company used pictures of various Royal Family members who had played paintball at one of their centres on its promotional material.
Royal Arms or Emblems
The Royal Arms or Emblems must also not be used in marketing without prior permission from the LCO. Certain relaxations relating to souvenirs have been made to the rules in this area by the LCO's guidance, but for all other advertising and marketing the rules remain in full force. Any marketing or advertising utilising the Royal Arms or Emblems that is not a souvenir will therefore still need to receive the LCO's permission.
The CAP guidance points out that any reference to a Royal Warrant in adverts or marketing should be checked with the Royal Warrant Holder's Association as per rule 3.52 of the CAP code to verify that the party making this claim is indeed the holder of a Royal Warrant.
Incidental References
The CAP guidance suggests that incidental references to the Royal Family unconnected to the advertised product, or references to material such as a book, article or film about the Royal Family may be acceptable. Similarly, adverts featuring suggestive phrases such as "having a party? Don't forget…" or "60 ways to celebrate with…" are likely to be acceptable. Phrases such as "The Queen invites you…" on the other hand are not.
THE SOUVENIR GUIDELINES
The souvenir guidelines recently issued by the LCO relax the above rules on Royal Arms or Emblems and on use of approved photographs of the Queen and Duke of Edinburgh specifically for the manufacture and sale of souvenirs relating to The Queen's Diamond Jubilee. This relaxation of the rules only applies to souvenirs manufactured until 1 October 2012, after which souvenirs related to the Diamond Jubilee may not be manufactured.
Basic Guidelines
Souvenirs must be "permanent" and identified with the occasion by inclusion of a phrase such as "The Queen's Diamond Jubilee 2012" or "The Queen's Diamond Jubilee 1952-2012". Souvenirs must:
a. be in good taste;
b. be free from any form of advertisement; and
c. carry no implication of Royal Custom or Approval.
Royal Symbols that may be used
Producers of souvenirs may use the following "Royal Symbols":
a. the Royal Arms or component parts thereof;
b. the Arms of The Duke of Edinburgh or component parts thereof;
c. The Queen's Cypher;
d. The Duke of Edinburgh's Cypher; or
e. Approved photographs of The Queen and The Duke of Edinburgh.
It is worth noting that photographs of other members of the Royal Family are not included in this, so individual permission should be sought if producing souvenirs featuring images of any other Royals.
Special limits on souvenir boxes, tins, "receptacles of merchandise" etc
If producing a souvenir receptacle of merchandise or container, the manufacturer's name and the contents may only appear on the underside, interior or stopper of the container and the item must be made of "semi-permanent" material such as metalware or ceramic. The only Royal Symbols that may be used on such items are approved photographs of The Queen and The Duke of Edinburgh and the Royal Crown. Royal Arms or Royal Cyphers may not be used except by holders of the Royal Appointment as Tradesmen.
Special limits on textiles
The only textile souvenirs permitted to carry Royal Insignia are carpets, wall hangings, cushions and head-scarves. There is a specific prohibition on producing teatowels, aprons or t-shirts carrying Royal Insignia. However, it is worth noting that the guidelines do not rule out using photographs of The Queen and The Duke of Edinburgh on a wider range of textile based souvenirs, provided that these meet the tests of good taste and permanence.
Coins to count as souvenirs
For this occasion, the LCO are counting commemorative coins (i.e. not currency) and medallions as souvenirs, so these may be produced subject to the relaxed rules.
Packaging / Advertising
The Royal Symbols may not be used:
a. on the packaging for souvenirs (except as specified in the rules on souvenir boxes, tins etc); or
b. in any promotional advertising for souvenirs (except incidentally to a photograph of the souvenir itself).
This latter point is worth emphasising – if you are producing Diamond Jubilee souvenirs, advertisements for such souvenirs must not feature the Royal Symbols other than as part of the advertised souvenir if this is featured in a photo.
Decorations
The Royal Symbols may be used in any "scheme of decoration" to celebrate the Diamond Jubilee, but the Royal Insignia must not be used in any way that might imply Royal Patronage or Royal Approval of any firm or its products.
OTHER LEGAL PITFALLS FOR UNWARY ADVERTISERS
Consumer Protection Law
Advertisers and those producing souvenirs around the Diamond Jubilee should take note of the CAP and LCO's guidance. The Consumer Protection from Unfair Trading Regulations 2008 make it a criminal offence to misleadingly use Royal names, images or insignia in advertising. The maximum penalty is a fine and hypothetically even up to two years imprisonment.
Copyright Law
It is worth remembering the general copyright law surrounding photographs – these should only be used subject to the consent of the copyright owner (for example the photographer or agency) or advertisers will be opening themselves up to infringement claims which could potentially lead to being taken to court and the payment of damages and compensation.
Trademark Law
Finally, trademark law. As discussed above it is a criminal offence to use Royal Insignia or similar designs in such a way to lead to the belief that the user is entitled to do so when they are not. It is also an offence to use any device, emblem or title in such a way as to imply that the user is employed by or supplies services or goods to any member of the Royal Family when they do not.
Applications may not be made to register trademarks incorporating elements of Royalty, such as the Royal Arms, signs or devices resembling the Royal Arms, the Royal Crown or any Royal Flag, representations or portraits of the Royal Family, names of Royal Family members or names and pictorial representations of Royal residences without prior consent being granted by or on behalf of the Queen.
The use of words containing "Royal" is also restricted, where the goods or services to which they apply are of a class associated with the Royal Family (e.g. fine porcelain, luxury goods). "Royal" may not be registered as part of a trademark without permission and the UK Intellectual Property Office retains discretion in such cases. However, use of the word "Royal" in trademarks for everyday items which would not normally be associated with the Royal Family will not usually require consent.
Why this matters:
The Diamond Jubilee represents a great opportunity for marketers. While there is little history to suggest that the Royal Family will personally intervene to challenge unapproved souvenirs or inappropriate marketing except in extreme circumstances, and neither the CAP code nor the LCO guidance carry direct legal force, being seen to get it wrong on such a high profile event could potentially cause reputational damage to a brand and lose the advertiser's chairman their chance of a knighthood.
Further to this, publishing misleading advertising or infringing trademarks or copyright could give rise to criminal offences. If any doubts remain as to whether a proposed marketing opportunity is within the rules and the law, advertisers and marketers should seek further advice from the ASA, the LCO or a suitably qualified law firm.
