Le rouge et le noir: when colour hits the IP headlines

When does a red rose look too much like a red rose?  Not everybody spotted this item in the Scottish press last week, but this Kat is surprised that he did not receive the link from one of his many Scottish readers. It's a piece published in heraldscotland with the title "UK Labour tries to block trademark for Scottish Labour Party". This article, in relevant part, reads as follows:  
Labour councillor Dennis Goldie applied last year to secure the name Scottish Labour Party in the hope it would be used by a new stand-alone organisation. Goldie ... wanted to gift the trademark to the leader of Scottish Labour in the event of a general election drubbing [in which the previously dominant party was left with just a single seat]. He admitted the £500 application to the UK Intellectual Property Office (IPO), which was paid for by a local Labour club, would be a "surprise" to HQ, but said it was "done to be helpful". However the UK Labour Party has now raised an objection with the IPO. ...

Goldie ... applied to register the trademark after realising Scottish Labour had never safeguarded its own name. Covering electronic and printed material, clothing, badges, fundraising, and political activity, the trademark was intended to protect the name being hijacked by opponents. But Goldie was clear he also wanted to obtain the name to make it easier for Scottish Labour to break from UK Labour and become fully autonomous. "In the country at large, there probably is a view that the Scottish Labour Party should be independent of the national Labour Party," he told the Sunday Herald at the time. ...

A Labour spokesman said: "The Scottish Labour Party is at its best when we work together with friends and colleagues across the whole of the UK Labour Party. The old trade union slogan applies to our country as much as to our party - unity is strength."
The Labour arty's election manifesto position on recognition of the importance of intellectual property is summarised here. The red rose, as a badge of political affiliation, is much older than the Labour Party, though, being the symbol of the House of Lancaster in the Wars of the Roses.


The defendant's taxi
When does a black cab look too much like a black cab? We won't know the answer to this question until November, but in the meantime thanks to a hot-off-the-press decision of Richard Spearman QC (sitting as a deputy Judge of the Chancery Division, England and Wales) in The London Taxi Corporation Ltd v Frazer-Nash Research Ltd & Ecotive Ltd [2015] EWHC 1840 (Ch), we do know that the trial Judge will be making his or her mind up in this passing-off action without the assistance of a survey of the views of 1,000 members of the taxi-hailing public.

The claimant's taxi
The claimant (London Taxi Company, LTC) carried out a pilot survey asking 98 Londoners "Do you think there is a connection between the company that makes this vehicle [above, right] and the company that makes this vehicle [left]?". LTC then sought the Court's permission to roll this out to a full 1,000 person survey. The deputy Judge, applying the Court of Appeal's guidance in Interflora 1, Interflora 2 and Zeebox, concluded that the survey failed both the "real value" test and the cost-benefit test. He said that this was a case involving ordinary services with which a Chancery Judge would be familiar, that the survey question breached the Whitford Guidelines [summarised by Lewison LJ in Interflora I] and that the photographs shown to respondents did not show the differences between the vehicles sufficiently or fairly.

This Kat can't help noticing that the photo of the LTC taxi appears to have been taken at night-time and that the photo of the alleged infringer looks as though it was taken towards nightfall, neither of which is the very best time for enabling consumers to highlight differences between the vehicles. Merpel disagrees: she is more likely to want to keep her fur dry by catching a black cab at night and when it's raining -- conditions in which all cats cabs are said to look alike ...

Le Rouge et Le Noir here

Thanks go to Chris Torrero for the first item, and to an anonymous benefactor for the second. Both receive katpats for their services.
Le rouge et le noir: when colour hits the IP headlines Le rouge et le noir: when colour hits the IP headlines Reviewed by Jeremy on Sunday, July 05, 2015 Rating: 5


  1. It might be worth pointing out that the names and logos of UK political parties exist in their own unique and slightly vague area of intellectual property rights, distinct from trademarks, business names or copyrights. They are registered (in a publicly inspectable list) by the Electoral Commission on a first come first served basis, and last in perpetuity or until the party that registers them is dissolved, even if they are never used. The Electoral Commission is given the job of deciding that a party name and logo is not "confusingly similar" to any other before allowing it to be registered (although there is an exceptions in cases where the prior user gives permission).

    This would mean that even if a trademark for "Scottish Labour Party" had been secured, a new stand alone organisation would probably not be able to use it for any electoral purpose.

    Electoral IP law is fascinating, and to the best of my knowledge very short on case law. When we set up the Pirate Party UK, we were required to provide a copy of our constitution. We asked what it had to contain and what the Electoral Commission would do with it, and they replied that a blank piece of paper would suffice provided we told them it was our constitution, and they wouldn't do anything with it, since they were following a piece Electoral law that placed on them a statutory obligation to obtain constitutions without giving them any guidance on what they are, why they should obtain them, or what they should do with them once they had them.

  2. Alas, Jeremy, all your Scottish readers are on holiday in July :-)

  3. While the Labour party images display Ok, the Black Cab ones do not, either in Chrome or Internet Explorer, running XP.

  4. The images for the cabs are links to a Yahoo webmail page, presumably Jeremy's own account. This is the reason why they won't load onto any other computer.

  5. Thanks, Anonymice: the images were indeed Yahoo'd, but not to my account. I copied them over from my informant. I've since re-housed them and they should now be visible to all.

  6. Rather than "Do you think there is a connection between the company that makes this vehicle [above, right] and the company that makes this vehicle [left]?". "

    Why not:

    "Are you an ordinary dim citizen who is an easily led lemming, without a mind of your own and readily susceptible to suggestion from jumped up pretentious advertisers in flashy suits"?

  7. Are trade marks the appropriate type of IP to protect the size and shape of an industrial product?

    I would have thought that registered designs would have been the right tool.

    The general proportions of the London cab are dictated by its intended function, and remained the same for many generations. An analogy: how much differences are there between a Cadillac and a Lincoln hearse? Both are black, elongated, and carry a S-trim in the back.

    The plaintiff's poll questions seem to boil down to the question as to whether the two items serve the same function, which they do. Are they claiming the entire genus of black boxy looking cabs?

    The dusk/night pictures do not allow a fair comparison of any esthetic and arbitrary distinguishing details beyond the radiator grilles.

  8. UK Application for SCOTTISH NATIONAL PARTY (word) and THE SCOTTISH NATIONAL PARTY (word) withdrawn on 29th June 2015 !


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