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With the London Olympics and the Queen's Diamond Jubilee taking place this year, advertisers need to be aware of various marketing restrictions relating to each event. Specific legislation has been introduced with regard to the Olympics; however, while no specific legislation has been introduced with regard to the Diamond Jubilee, general advertising regulations and codes will still apply in addition to trade marks legislation.
The general position is that advertisements should not be misleading; in particular, marketing communications (which include advertising, sales promotions and direct marketing) should not claim or imply that a specific 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") recommends that marketers obtain written permission before claiming or implying any Royal approval of an advertised product.
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 consent. However, under the CAP Code incidental references that are unconnected with an advertised product can sometimes be acceptable.
Furthermore, the Royal Arms or Emblems must not be used without prior permission from the Lord Chamberlain's Office ("LCO") and references to a Royal Warrant 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. Royal Warrants are granted to named individuals within the applicable business and cannot be transferred to another individual without Royal consent, even where the business is sold or becomes insolvent.
The LCO has issued some guidelines regarding the sale of souvenir products, advertisements for which are not, of themselves, likely to imply a Royal endorsement.
In relation to memorabilia generally, advertisers should take care to ensure that an advert does not imply that a souvenir product is official memorabilia. Furthermore, 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, in good taste, free from any form of advertisement, carry no implication of Royal custom or approval, and do not contravene any trade mark or copyright. The guidelines also state that souvenirs of the Diamond Jubilee may not be manufactured after 1 October 2012.
The LCO's guidelines are not legally enforceable; they simply indicate what is deemed to be appropriate , but it is interesting to note that CAP’s own guidelines relating to the Diamond Jubilee specifically direct advertisers to the LCO guidelines.
In addition to the above, advertisers should bear in mind that the Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276) and the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277), which apply to advertisements and business dealings generally, will apply to advertisements for Diamond Jubilee memorabilia. These regulations include, amongst other things, general prohibitions on misleading advertising (which includes any representation made in connection with a trade or business) and misleading commercial practices, in each case that misleads businesses or consumers in a way likely to affect their economic behaviour, or which injure or could injure a competitor.
Those businesses wishing to advertise memorabilia or souvenirs relating to the Diamond Jubilee should review the LCO and CAP guidelines to see if their proposed advertisements comply. Any business requiring further guidance on what they can and can’t say in relation to advertising memorabilia for the Diamond Jubilee should seek advice. Clarkson Wright & Jakes would be happy to help.