CAP issues advice on advertising in relation to Queen's Diamond Jubilee
The Committee of Advertising Practice (CAP) has issued advice on how advertisers should approach creating advertisements with reference to the Diamond Jubilee of Queen Elizabeth II.
With the London Olympics and the Queen's Diamond Jubilee taking place this year, advertisers have to take great care in advertising their products, so as not to breach marketing restrictions relating to each event. Whilst specific, detailed legislation has been introduced to protect the Olympics, no specific legislation protects the Diamond Jubilee. However, various bodies have issued guidance relating to the event to help advertisers avoid breaching advertising rules; the most recent of which has been issued by CAP. Retailers also need to consider more generally the IP law issues that may arise from commercial exploitation of the event.
In line with the rules prohibiting broadcast and non-broadcast advertising that is misleading, marketing communications (which include advertising, sales promotion and direct marketing) should not claim or imply that a particular product is endorsed by the royal family, or is affiliated to royal events, when it is not. The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) urges marketers to obtain written permission before implying any personal approval of an advertised product. Any member of the royal family who does not want to be associated with a product in this way could have a legal claim against the advertiser (Rule 6.1), for example, for passing off, or under Section 99 of the Trademarks Act 1994.
The CAP Code also contains specific rules relating to members of the royal family, who should not normally be shown or mentioned in a marketing communication without their prior permission (Rule 6.2). The Advertising Standards Authority (ASA) has, in the past, upheld complaints about advertising that implied royal endorsement. However, the CAP Code explicitly states that incidental references that are unconnected with an advertised product, or a reference to material such as a book or film about the royal family, may be acceptable.
Furthermore, the royal arms or emblems must not be used without prior permission from the Lord Chamberlain's Office (LCO) (Rule 3.52). References to a royal warrant (a mark of recognition that is granted to individuals or companies who have supplied goods or services for at least five years to HM The Queen, HRH The Duke of Edinburgh or HRH The Prince of Wales) should be checked with the Royal Warrant Holders' Association (RWHA), as their use is strictly protected under the Lord Chamberlain's rules on use of royal warrants (Rule 3.52). Royal warrants are granted to named individuals within each warranted business and cannot be transferred to another individual or, where the business is sold or becomes insolvent, without royal consent. The RWHA has pre-authorised a selection of images of crowns which may be used for business purposes without infringement of the Royal Crown.
CAP's guidance also directs advertisers to specific guidelines which have been issued by the LCO regarding the sale of souvenir products; advertisements for which are not, of themselves, likely to imply a royal endorsement. Advertisers should take care to ensure that an advert does not imply that a souvenir product is official memorabilia, and CAP advises against using images that have been provided for souvenirs or other specific uses in marketing communications for unrelated products.
In relation to memorabilia more generally, although royal photographs and insignia may not usually be used in connection with any trade or business without permission from the relevant member of the royal family, these restrictions have been temporarily relaxed for use on souvenirs commemorating the Diamond Jubilee. The LCO's guidelines state that it will not generally seek to oppose the use of royal insignia or images of members of the royal family on certain articles for sale, provided that they incorporate specific wording, such as "The Queen's Diamond Jubilee 2012" or "The Queen's Diamond Jubilee 1952-2012", and:
- are of a permanent kind;
- are in good taste;
- are free from any form of advertisement;
- carry no implication of royal custom or approval; and
- do not contravene any trademark or copyright.
The guidelines also state that souvenirs of the Diamond Jubilee may not be manufactured after October 1 2012. The LCO is willing to provide guidance to individual advertisers when it is unclear whether use of any royal insignia may give the impression that there is a royal connection.
The LCO's guidelines are not legally enforceable; they simply indicate what is deemed to be appropriate.
CAP has given the following examples of advertising which it expects are likely to be acceptable in relation to the Diamond Jubilee: "Having a party? Don’t forget..."; or "60 ways to celebrate with..." - provided that any such advert does not feature Her Majesty or other members of the royal family. On the other hand, statements such as "The Queen invites you...", or similar, should be avoided.
Questions and advertising copy can be submitted to CAP's Copy Advice team for free, bespoke advice.
With regard to trademarks, it is prohibited to register (without the consent of the relevant member of the royal family) a trademark which consists of, or contains, any of the following:
- the royal arms;
- a representation of the royal crown or any of the royal flags;
- a representation of Her Majesty the Queen or any member of the royal family (including imitations); or
- words, letters or devices likely to suggest that the applicant has had royal patronage or authorisation (Section 4(1) of the Trademarks Act).
In addition, a trademark application which includes a royal reference may be rejected if it is made in bad faith (Section 3(6)) or lacks distinctiveness (Section 3(1)).
Guidance issued by the Intellectual Property Office (IPO) also provides examples of categories of goods and services for which the word ‘royal’ (or similar words, such as ‘royale’) would imply royal patronage, and thus require royal consent (IPO Work Manual of Trademarks Practice). These include high-value products, or prestige or public interest-type services, including high-quality porcelain, luxury foods, exhibitions and charitable services. On the other hand, use of the word ‘royal’ in trademarks for everyday items or goods which are sufficiently removed from association with the royal family, such as double glazing or skateboards, will not usually require consent. Equally, word marks incorporating ‘royal’ will be acceptable if they are used in combination with another registrable word or words which point away from the mark implying royal patronage (eg, RAYBURN ROYAL).
It is also an offence (punishable by a fine) for a person to use, without the consent of Her Majesty or a member of the royal family, royal insignia or titles in connection with any business so as to lead to the belief that that person is authorised to do so, or is employed by, or supplies goods or services to, the royal family (Section 99).
The royal family could employ the tort of passing off to prevent false representations that they have endorsed goods or services. However, members of the royal family are afforded more explicit legal protection, and it is a criminal offence to give, in the course of any business, and by whatever means, any false indication that goods or services are of a kind supplied to or approved by any member of the royal family (Section 12 of the Trade Descriptions Act 1968). This would include the use of royal names and emblems or arms, or anything deceptively similar. This is a strict liability offence and carries a maximum potential penalty of two years' imprisonment and an unlimited fine.
The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276) (BPRs) and the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) (CPRs) include, among other things, general prohibitions on misleading advertising and misleading commercial practices. The BPRs relate, primarily, to business-to-business advertising, and are intended to protect UK traders from other unscrupulous businesses, whilst the CPRs apply to any business practices which have the potential to affect consumers (either directly or indirectly).
In broad terms, any deceptive advertising or other representation relating to, or made in connection with, a trade or business that misleads traders or consumers in a way that is likely to affect their economic behaviour, or injure a competitor, will be misleading. The BPRs and CPRs will apply to advertising relating to the Diamond Jubilee that, for example, misleads the public or other traders into thinking a particular business or product has been officially authorised by the royal family. Any contravention of the BPRs or CPRs is punishable by a fine and/or a maximum of two years' imprisonment.
The business impact will be as follows:
- Retailers will have to bear in mind a raft of legal issues, regulations and guidance when considering making reference to the Diamond Jubilee in advertising, on products and souvenirs, or otherwise in connection with their business.
- It seems unlikely that the royal family will intervene in respect of unapproved memorabilia or commercial activity, unless the context of the advertising or product are in very ‘poor taste’. It is more likely, however, that there will be complaints from royal enthusiasts to the ASA or to Trading Standards about the manner of advertising in connection with the Diamond Jubilee.
Joel Smith, Rachel Montagnon and Victoria Horsey, Herbert Smith LLP, London
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