They live in California, they never visit, how else does one keep up with what Harry and Meghan are doing?
The UK Registry recently upheld a trade mark opposition filed by Queen Elizabeth II. The opposition wasn't filed by the queen personally of course, one has people who do this sort of thing. In this case, the person who does the thing is the Lord Chamberlain. The trade mark application that caused royal displeasure comprised the words "The Royal Butler", together with an arguably royal-looking device featuring a lion and a crown. The application was in class 41 and it covered education and entertainment services.
The basis of the opposition was that people might assume that the owner of the trade mark has, or at least recently had, royal patronage, thus contravening not only the UK Trade Marks Act, but also various other laws, such as the Trade Descriptions Act and the Consumer Protection from Unfair Trading Regulations. The opposition was filed under sections 3(4), 3(5) and 4(1)(d) of the UK Trade Marks Act.
So, who is this chancer? His name is Grant Harrold, and it turns out that he was once a royal butler, butlering (if that is what butlers do) for Prince Charles no less. In his response to the opposition, Harrold said that senior members of the Royal Household had given him permission to use the name The Royal Butler. He also claimed that he had used the name for about seven years, first as a "stage name", but also as the name of an etiquette and butler training school that he runs with a royal that no-one's ever heard of, HRH Princess Katarina of Yugoslavia and Serbia. Harrold's response in fact gives an interesting insight into a very different world – at one stage he posted videos entitled "The Royal Butler's Etiquette Guide to Napkin Folding" and "The Royal Butler's Etiquette Guide to Candles". There are indeed useful skills to be learned on YouTube!
As we said, the registry upheld the opposition. The hearing officer made the point that, although some of Harrold's other trade marks like The Royal School of Etiquette are not problematic because there's no suggestion of patronage, The Royal Butler does suggest the title of an office within the Royal Household. He held that the devices are sufficiently close for there to be confusion because, although "some of the public will know exactly what the lion in the Royal arms looks like, others will not". Perhaps the word "others" could have been replaced with "most".
There's not a great deal of trade mark law in the judgment, but that doesn't make it boring. Some might even argue that that's what makes it interesting. So, here goes:
- The Royal Household "is the largest employer of butlers in the UK". There are 44 of them.
- The royals take IP seriously – an individual who works in the Lord Chamberlain's office, a lady by the name of Charlotte Martin, has overall responsibility for royal trade mark issues. It's not clear whether Charlotte has some fancy title like Royal Trade Mark Counsel.
- The trade mark manual says that not all trade marks featuring the word "royal" will suggest royal patronage. There will generally only be a suggestion of patronage where the trade mark is used in relation to high value or prestigious goods or services. Everyone knows the royals don't do cheap!
- The Lord Chamberlain will generally consent to trade marks featuring the word "royal" if there has been actual patronage, but he will object if the trade mark is likely to be misleading. He recently objected to an application to register the trade mark The Queen's Tipple.
- There is a Royal Names Team within the Cabinet Office that also gets involved in these matters. The Cabinet Office's Constitutional Policy Team wrote to Mr Harrold about this matter back in 2015. Surely cabinet ministers have bigger things to worry about!
- The word REDACTED appears quite often in the judgment. Because information of this sort is so sensitive presumably. Really!
To what extent is this relevant to South Africa? As a republic we of course don't have a royal patronage exclusion in our trade mark law. But Section 10(8) of the Trade Marks Act does prohibit the registration of a trade mark that contains a coat of arms, seal or national flag of any country. Section 10(9) prohibits the registration of a trade mark containing a word or device that indicates state patronage. Finally, section 10(12) excludes any trade mark that may deceive or cause confusion.
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