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Thursday, 10 November 2011

Wiltshire shaken by sale of unauthorised plant variety

The poppy, without tear drop ...
11 November is Remembrance Day in the United Kingdom and in numerous other jurisdictions.  It is not a day for marking military victories or for mourning defeats, but a day for the living to pay their respects to those who died in the service of their countries and, where appropriate, to recall with affection and sorrow the loss of family and friends.

While Remembrance Day is not an opportunity for rampant commercialisation, it too has a commercial dimension.  This takes the form of the solicitation by a registered charity, the Royal British Legion (RBL), of charitable donations in exchange for a remembrance poppy (right). The funds collected by the RBL are put to a variety of good causes for the benefit of ex-servicemen and women. These include counselling, rehabilitation facilities, the adaptation of domestic accommodation to meet the needs of the disabled and other forms of support. This Kat has bought a poppy this year, as he does every year, offering his thanks to those who have fallen on his behalf and his condolences to those who have been bereaved or have suffered loss.

This year's lead-in to Remembrance Day has however seen an unseemly intellectual property dispute. As the BBC explains:
"A Wiltshire charity worker who has made thousands of crystal teardrops for remembrance poppies has been told by the Royal British Legion (RBL) that it is an "unlicensed use" of the poppy. Lynda Beaven, of Steeple Ashton, has created 4,000 tears to raise funds for the RBL and other service charities. The project was launched in June to honour those connected with repatriations in Wootton Bassett. But an RBL spokesman said its trade mark rights had been "violated". 
... and with it
According to Mrs Beaven, the Wootton Bassett Teardrops project has sold over 1,500 teardrops at £3 each. However, on 27 October - on the Poppy Appeal launch day - she said she was told by the RBL that "technically you're not allowed to attach anything to a poppy". 
"I was taken aback by that because the Royal British Legion head office have been fully aware of my project since February," she said. "I even have an email from the publications officer at the RBL giving me permission to use a digital photo of my lapel poppy for fundraising."

But the RBL's national spokesman, Robert Lee, said the email Mrs Beaven had received "wasn't a licensing agreement" and using the poppy to raise funds for other charities was "in clear violation of our trade mark rights.  The red poppy is our registered mark and its only lawful use is to raise funds for the Poppy Appeal. She has made a not inconsiderable sum of money by selling our poppy and donating proceeds to other charities. This person was told the licensing conditions but chose to ignore them." 
According to Mrs Beaven, the RBL has yet to speak to her directly, although she said she had stopped selling the teardrops. "From the public we have received nothing but positive comments.
And on Saturday I received a letter from Camilla, Duchess of Cornwall thanking me for sending the Wootton Bassett teardrops and saying she shall wear them with pride." A Clarence House spokeswoman said the duchess would not comment on any private and confidential correspondence.".
The IPKat notes that the RBL has quite a trade mark portfolio. Of particular interest is UK registration 2239583, represented on the right, for goods and services in Classes 08, 09, 14, 16, 21, 24, 25, 26, 31, 35, 36, 39, 41 and 42. These include artificial flowers in class 26. Leaving aside for the moment the fact that this is a representation of an artificial flower which gives a monopoly in respect of the sale of artificial flowers, the IPKat is pondering on a number of other issues.
  • First, assuming that the poppies to which Mrs Beaven has attached the tears are genuine RBL poppies, there's in interesting exhaustion of rights issue: is the resale or at least the redistribution of RBL poppies with the tear attached actually prohibited at all?
  • Secondly, it seems quite difficult to separate the RBL poppy from the RBL trade mark since the goods in question do rather seem to be a trade mark for themselves.
  • Thirdly, if there is trade mark infringement, on what basis would RBL be able to recover damages and how would they be assessed, assuming that an appropriate donation has already been made in respect of the teardrop-enhanced variety?
Merpel is a little dazed by all of this. She's still trying to work out why the RBL's class 08 registration is for "spoons and cutlery". Having watched humans at feeding time on a number of occasions, she'd always assumed that spoons were cutlery, but is happy to be corrected on this point.

Thanks are due to Robin Fry (DAC Beachcroft LLP) for supplying the link, and for entertaining the IPKat with some delightful reflections on the application on these facts of the third head of the Rules against Perpetuities and Accumulations, of which this Kat knew (and still knows) nothing and which struck him as being about as relevant as the third law of thermodynamics.

Things to do with poppies here and here
Things not to do with poppies here and here

14 comments:

Anonymous said...

Jeremy, this is an interesting story with a sting in its tail. However, your title is contradictory: you cannot have an unauthorised variety, because the term "variety" is reserved for a group of plants that are registered as being stable in several defined characteristics or traits. Contrary to the fields we are forever dealing with (not Strawberry), the useful term covering something that is unregistered does not exist.

George

Jeremy said...

@George -- The title should have read "unauthorised sale of plant variety", not "sale of unauthorised plant variety". Such are the dangers of late-night blogging!

Anonymous said...

I was unaware that it is possible to legislate as to how the English language is used. If I am not allowed to refer to my King Edward potatos as a potato variety what wording should I use?

Francis Davey said...

I'm obviously missing something here, but as far as I can tell from the teardrop website:

http://teardroptime.co.uk/teardrop

Mrs Beaven doesn't "attach" the tears to a poppy (genuine or otherwise). She sells the tears pure and simple which can then be used by members of the public to attach to their own poppies. So surely we don't get to exhaustion. There is, surely, no trademark use at all.

At least not of the poppy. She does say "The Royal British Legion are aware of the project and are happy for the donation to be made" and one can imagine a number of claims that might be made about that, although if its true they would be rather difficult to mount.

And of course (here exhaustion does come in) the RBL really can't control what people do with their poppies once bought.

So, either I'm showing my ignorance of the true breadth of trademark law, or there's something odd here.

Anonymous said...

Well, for a start, the rules of English grammar and spelling mandate that you should call your tubers "potatoes" rather than "potatos".

Anonymous said...

A little reading will show that the objection was that she "did not have the right to use the image of the poppy"

Jeremy said...

@Anonymous 1:56pm
I don't know whether the content of the BBC has been amended from time to time, but I can't find your quote in the version I read. The objection of the RBL also appears to be to the sale of the poppy. Are you using another (possibly more reliable) source?

Anonymous said...

Looks like it is from a report in the "Wiltshire Times" as noted in the teardrop's web site here: http://teardroptime.co.uk/news

"November 4, 2011 | Posted by Lynda In today’s edition of The Wiltshire Times newspaper (4th November), there is an article which talks about The Teardrop project, enabling the public to silently show their appreciation to everyone involved with repatriations, and especially to Royal Wootton Bassett for their dedication over the last 4 years.

However, the article also claims that on October 27, the day the Poppy Appeal was launched that I was told I could not promote the teardrops, because I did not have the right to use the image of the poppy."

Francis Davey said...

It may be that her website used the image of the poppy at one time (as she claims, with permission) but it does so no longer.

Anonymous said...

Ashley says

I did my PhD in thermodynamics and combustion. Never once have I had an IP case (and I've done a few) which has called upon my many skills in this area.

Anyway, the laws of thermodynaice are four in number (zero, one, two and three). Basically they say (1) that there have to be rules concerning thermal transfers, (2) that you cannot change those rules, (3) that when it comes to thermal transfers you cannot win and (4)likewise you cannot break even.

The third law of thermodynamics simply says that heat can be stored in various ways, much like storing boxes in an empty lockup; you can put them on top of each other or in a single layer on the floor or other combinations - even hanging in the air with no support if you like.

Never say you don't understand T3 again.

Anonymous said...

@Anonymous Friday, November 11, 2011 8:50:00 AM:

King Edward is most likely a variety, because it is registered with the authorities. So, it would be ok for you to call your bunch a variety. But you might have King Edward look-alikes, even though they may be fine tubers, they do not constitute a plant variety until they have passed official tests and have been registered against payment. And they would get a different name.

As to Ashley's laws of thermodynamics I recommend Flanders & Swann for the first and second: "Heat is Work and Work is Heat" and "Heat cannot by itself pass from one body to a hotter body" -- very early rap of sorts.

George Brock-Nannestad

P.S. would you believe it: the Word Verification is ANTUB

P Dant said...

The idea that you can only talk about a variety if it's been registered is no sounder than the notion that you can only talk about an invention if a patent has been granted. The UPOV convention talks about varieties 'of common knowledge' - clearly this includes things that aren't registered. A plant variety is something potentially capable of being protected by registration, should it meet the statutory requirements (novelty, distinctness, uniformity, stability, etc.,).

Anonymous said...

@P Dant: irrespective of the logical attraction of your argument it seems that the 'common knowledge' refers to knowledge about those varieties that are already entitled to carry the designation, i.e. by being registered in any country that has a PVR (Plant Variety Right) institution. See for instance:

http://www.iponz.govt.nz/cms/pvr/technical-notes-guidelines/varieties-of-common-knowledge-identification-and-usage

(sorry about the long link)

George Brock-Nannestad

P Dant said...

George, thanks for this, but I think your reference favours my side of the argument rather than yours. I quote " A variety of common knowledge is not required to meet the same standards required for protected varieties and could include unnamed varieties, ecotypes and landraces.".

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