Tim Lince

A British charity’s dispute with a far-right political party over the use of the red poppy image highlights both the difficulties facing cause-related not-for-profits when their message is politicised and how trademark law could come to the rescue.

The Royal British Legion, founded in 1922, provides support for members and veterans of the British Armed Forces, as well as their families and dependants. It holds an annual Poppy Appeal fundraising campaign around Remembrance Day (November 11), during which artificial red poppies, meant to be worn on clothing, are offered to the public in return for a donation. The Legion has voiced outrage in recent weeks about the use of the poppy image, which it has held an EU trademark for since 1997, on the website, social media pages and online store of far-right British political party Britain First.

A Legion spokesperson told World Trademark Review: “We contacted Britain First about their misuse of the red poppy symbol and received a response in October stating that this would cease. The activity has continued and the Legion will be taking further action. It is unacceptable for the red poppy to be used for political, partisan, sectarian or commercial purposes. The Royal British Legion is strictly non-political and the poppy is a symbol of remembrance and hope, which is a registered trademark of The Royal British Legion used for supporting our Armed Forces community.”

There are a number of potential misuses the Legion is concerned about. Britain First, which was formed in 2011, has previously raised funds by selling products on its website that feature the poppy image (such as a pin-badge and a polo shirt), as well as promoting products still sold at far-right online retailer Lionheart GB (such as various badges and shirts). Britain First also set up a ‘Protect the Poppy’ campaign, encouraging volunteers to ‘protect’ British Legion poppy sellers by becoming unofficial bodyguards, and publicised it extensively to its 580,000 Facebook followers - including a banner at the top of the Facebook page (that asked users to ‘like’ the page), numerous status updates and a number of pages on its website.

The selling of poppy merchandise is of concern to the Legion because it takes potential funds away from the charity. In this respect it could have a case. Sharon Daboul, a trademark attorney at EIP in London, tells World Trademark Review that the Legion “has good grounds to prevent any third party from using the symbol in the course of trade”. However, the ‘Protect the Poppy’ campaign is a murkier area in terms of whether it is breaching the Royal British Legion’s trademark. Defining ‘trade’ in this instance could be key.

“Use must be in the context of commercial activity with a view to economic advantage and not as a private matter,” Daboul explains. “Therefore, when it comes to Britain First’s use as a political party, the case is not as clear cut.” So while the trade of products on its website featuring the poppy image is a clearer matter to consider, Britain First’s ‘Protect the Poppy’ campaign would be a tougher decision for the court. Images for the campaign did not ask specifically for donations, but asked users to ‘like’ the Britain First Facebook page. Drawing on research suggesting a single Facebook ‘like’ is worth a monetary value to brands, this could be another avenue the Legion argues.

Daboul notes: “On some level, Britain First’s number of Facebook ‘likes’ opens them up to commercial exploitation opportunities (ie, interest from advertisers) and such use could no longer be seen as unequivocally political as would, say, gaining votes or garnering interest in their cause. The question for the court would be whether Britain First’s use of the poppy on their website is unequivocally political (to gain votes) or whether there is another purpose (such as encouraging viewers of their material to donate to their campaign). It would be down to a court to decide whether their use of the poppy is exclusively political or not.”

There’s also the issue of passing off, and whether users of the Britain First websites may conclude that the Royal British Legion is endorsing or even sponsoring the use of the poppy or the ‘Protect the Poppy’ campaign. Daboul claims, on this ground, the Legion “could be more successful”, and adds: “They could also argue that an association with Britain First could cause damage to their poppy brand and the charity’s reputation in general.” In terms of previous case law, Unilever successfully argued in 2011 that the use of the Marmite brand by another far-right British political party, the BNP, would damage the reputation of its trademark and was granted an interim injunction, so there is precedent that the Legion can use.

Clearly there are options available to the Legion as it bids to prevent the political use of the poppy, although it remains to be seen how this particular dispute plays out. From a wider perspective, in the age of social media, political parties like to use brands and images that potential voters can relate to and which will quickly gain traction online. This will not change any time soon and means that other cause-related not-for-profits could see their imagery used for political purposes. While trademark law offers some solutions, for non-profits the key is to act quickly and manage the message, particularly when their campaign is time-limited, to ensure that any damage is minimised.  

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