Monday 2 October 2017

Darren Olivier

UKIP's new logo: a Lion's tale

UKIP’s new logo, announced on Friday, has caught our attention. They have chosen one of Afro Leo's brethren to help distinguish themselves from other political thought in Britain. Yes, it’s a lion but not just any old lion. It’s a male lion looking 45 degrees to the right, dressed in purple, with a manicured mane and five carefully crafted tufts upon his crown that well, look like a crown. In this way it looks remarkably similar to the Premier League lion, and the party has been taking stick for that all weekend.

Distinguishing lions? (UKIP v FA's UKIPO registered lion)

Afro Leo - a distinguished lion

It is this lion that will be courting English support on what Wikipedia describe as its “Eurosceptic and right-wing populist” views. If one were to use a symbol to try to appeal to as many Britons as possible, the popular Premier League lion would be one of them. It’s not like UKIP have not done this in the past. Their “old logo” which still appears on the Wikipedia page quite clearly shows the pound symbol; another national symbol, the preservation of which is a major part of their political message. It's also not without some irony that a party that does not favour immigration much, imports an animal that does not occur naturally in the English countryside.

UKIP's old logo

The Football Association Premier League (FA) symbol is interesting. Not only is the most watched sports league in the world; broadcast to 643 million homes in 212 territories and a potential TV audience exceeding half the world’s population but it has strict and largely acceptable rules and regulations on the foreign players. Is it mere co-incidence then for a political party seeking national accreditation for policies that favour Brexit and include strong immigration control to chose such a particular lion as their icon?

Ironically again for UKIP, it is the decisions of the European Court of Justice on trade marks that will most likely decide whether the continued use of the logo is going to be acceptable. In the UK the most likely potential causes of action for the FA are copyright infringement, trade mark infringement, design infringement and passing off. While each has their own specific rules and requirements for enforcement, one suspects that arguments based on registered trade marks are going to be the most suitable.

The reason for this is that passing off is fairly narrow under English law and requires one to show a likelihood of confusion, factually. As the business of politicking and sport are arguably quite different (politicking in sport being irrelevant) it might be easier and more effective to focus on other grounds. Copyright infringement also involves the enforcement of an unregistered right that often comes unstuck in the technical aspects of showing originality, ownership and copying. These grounds avail themselves but the registered trade mark is likely to better.

This is assisted by Lane IP's, the trade mark lawyers representing the The Football Association Premier League Limited, registration for the iconic Lion logo by itself in 19 classes, including most of the relevant service classes under UK registration no. 3148818. Class 36, for example, includes “fund raising” which is a service that is identical with those of a political party, as would be “events” and “education” in class 41. It is registered in black and white giving it scope of protection for all colours and its use in purple essentially means that it will be considered to be registered in purple.   

Those who follow European law will know that other members of the animal kingdom, namely a Sabel and Puma resolved the European test for traditional trade mark violations in the late 1990s. Under this test, it has also been trite that the fame of the earlier trade mark, namely the registered lion must be taken into account and provides greater protection for it (please take note Supreme Court of South Africa who were recently perplexed by this question in Pepsico v Atlantic Industries). Any fame in the later mark is ignored. 

One suspects that despite the fact that logos depicting lions maraud the UK trade mark register in large packs, the similarities in the logos in question are just too much. The FA surely will be successful by either showing a likelihood of confusion based on notional use of the registered trade mark explain above and/or unfair advantage and detriment provisions of trade mark dilution i.e. that UKIP has infringed the FA registered trade mark for the lion device because its use takes unfair advantage of the reputation in the mark because it rides on the coattails of its fame and recognition, without due cause.  It is also likely to be detrimental to the distinctive character of the famous lion; after all the FA has no control over a political party that is not without its fair share of ridicule. It will devalue their lion.

Darren Olivier

Darren Olivier

Subscribe via email (you'll be added to our Google Group)