Royal rubbish – does unofficial wedding merchandise break the law?

Hip hip hooray! We’re all off work tomorrow! I mean, er, we’re all going to be celebrating the Royal Wedding tomorrow!

Royal Wedding hype is now in overdrive, and the list of incredible Royal Wedding tat on sale is almost as ridiculous as Prince Phillip’s legendary gaffes. Dobbies is selling the essential Royal Wedding rose, for patriotic gardeners everywhere (let’s hope the wedding outlasts the flowers). Heritage Condoms Limited is punting special royal prophylactics, which “combine the strength of a Prince with the yielding sensitivity of a Princess-to-Be”. And, in what is surely a dreary publicity stunt, mugs are onsale which “accidentally” star Prince Harry.

Is it legal?
This got me wondering about whether or not this tat – the “Royal Rubbish”, if you will – infringes any rights of the Royals. Official merchandise personally approved by Prince William and Kate is being overseen and sold through the Royal Collection, which looks after the Queen’s extensive art collection and arranges public exhibitions.

But what about all the other Royal Rubbish?  If it’s not official, does that mean that it’s illegal? Certainly, the use of royal arms, emblems and representations of a member of the royal family on souvenirs is prohibited by the Trade Marks Act 1994, unless permission has been obtained from the Royal Family. Selling unlicensed goods can lead to a criminal prosecution. (I’m not sure if it also qualifies as treason – if so, there is a sentence of life imprisonment!)

Temporary relaxation of rules
Happily, in the run-up to the wedding, Prince William has approved a “temporary relaxation” of the rules governing the commercial use of royal photographs and insignia on souvenirs. This allows the use of approved photographs of the royal couple and the full Coat of Arms of Prince William. Such use must be in “good taste”, carry no implication of royal approval and must make it clear they are commemorative items. There are also tough restrictions on what constitutes “souvenirs”, and all sales must cease by the start of October.

Overall this “temporary relaxation” seems sensible, especially in light of the disastrous attempts by the Diana Princess of Wales Memorial Fund charity to control the use of Diana’s image. In 1998, The charity was unhappy about companies using Diana’s name and/or likeness on memorabilia, and took particular issue with the Franklin Mint Co, which was producing plates, dolls and other memorabilia bearing Diana’s name and likeness. The charity tried to use the Californian district courts to sue the Franklin Mint Co for false endorsement and false advertisement, violation of California’s “post-mortem right of publicity” statute, violation of trade marks, and unfair competition.  The Court of Appeals’ judgement provides a good summary of why the Californian courts were not impressed with these claims, the principal problem being that Diana had been a resident of the UK, and UK law did not (and still does not) recognise a post-mortem right of publicity. The litigation continued for years, with an unwelcome twist being that the Franklin Mint counter-sued The charity for malicious prosecution of the first lawsuit!  At the start of this year the parties finally reached a $25 million settlement, and all settlements linked to the case were given to charity anyway.

False endorsement
How does this square with the British Chancery Court decision in Irvine v Talksport, in which it was held that false endorsement claims could be brought under the “passing off” doctrine, and that celebrities/public figures have a property right in their goodwill which they can protect from false claims or suggestions of endorsement of a third party’s goods or business? Well, in his judgement Justice Laddie emphasised, more than once, that the defendant had not actually sold merchandise bearing the celebrity/public figure’s name and/or likeness, and that the opinion did not address the question of whether UK law prohibits the unlicensed manufacture and sale of merchandise bearing celebrity/public figures names and/or likenesses.

So, enjoy the Royal Wedding, and use that tea towel which you bought down the Barras safe in the knowledge that whoever manufactured it is unlikely to end up in the Tower!

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