Trademarks help with cashing in on catchphrases
The Christian Publishing Outreach (CPO) now has a notice on its website stating: "Now that we are aware that our posters featuring Bible verses and the expressions 'Am I Bovvered', 'Yeah, I know', 'Yeah but, no but' and 'How very dare you!' are infringing trademarks, these items have been withdrawn from sale.
"We would also like to offer our sincere apologies for this genuine mistake, and for any offence caused to the trademark holders."
CPO produces posters and other marketing material for use by churches throughout the UK and its "comedy" posters were aimed, primarily, at encouraging more youngsters into the church.
These catchphrases, made famous by Little Britain stars Matt Lucas and David Walliams, Catherine Tate and others, have been registered as trademarks by them or the companies owning the appropriate marketing rights.
But did the use by CPO of these catchphrases in marketing materials actually infringe the relevant trademarks?
The statutory definition of infringement of a registered trademark covers the situation where the trademarks being used are identical (as in this case) and are being used in the course of trade in relation to goods or services similar to those for which the trademark in question is registered - and, in a key point, where "there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trademark".
Certainly, in this case, the phrases are identical, but are the other elements of the infringement test satisfied?
In the case of the Little Britain trademarks, they are registered for "advertising and promotional services", but this does not necessarily mean they cannot be used to advertise other products. And CPO's use was not to advertise its own services, but rather to promote a religious message.
In the case of Catherine Tate's famous catchphrase, the argument for infringement would have to be based on the fact that its application covers "printed matter", but again there is no particular religious context - though the application to register "Am I Bovvered?" as a trademark does cover registration for Easter eggs!
It also has to be queried whether the use of the catchphrases in the context of promoting religion is actually use in the course of trade. And, for infringement, there has to be a "likelihood of confusion on the part of the public" - would those seeing the posters have assumed it was a clever advertising gimmick or would they have thought the comic creations (and remember these are fictional characters) were endorsing the message behind them?
A number of issues raised, but, as the posters have been withdrawn (and an apology given) without the matter coming before the courts, definitive answers will have to wait.
What this case does illustrate is the fact that it is no longer just a brand that is regarded as worth protecting, catchphrases are also deemed worthy - or perhaps rather it is the case that what constitutes a brand should now be looked at in a much wider context.
The current approach recognises the value of protecting intellectual property rights as widely as possible. Certainly, you might have expected Little Britain itself to be registered as a trademark (as indeed it is), but with the monetary value of endorsements, now a catchphrase or even a fictional character is worth protecting.
To illustrate this change in approach, catchphrases such as "Nice to see you...", "Ooh, you are awful!" and even the Krankies' "Fandabidozi" are not registered; Tommy Cooper's "Just like that" is, but for stain removers, not for the wide range of commercial goods for which its current counterparts ensure their rights are protected.
And, going back further still, "ITMA", is registered not for Tommy Handley phrase It's That Man Again, but for the Institute of Trade Mark Attorneys! It at least should know exactly what it needs to do to protect its intellectual property rights.
In the current era, with the commercial value that can be exploited from properly protected trademark registration, the answer to the question of whether to register or not is "Elementary Dr Watson".
FOR FURTHER INFORMATION PLEASE CONTACT: SCOTT KERR