The Monarchy, Meghan, and Trade Marks

Kensington Palace announced this week that Prince Harry and Meghan Markle are officially engaged, and are expected to marry next May. Before we dismiss the celebrations as just another celebrity extravaganza, it’s important to remember that the upcoming nuptials will benefit the economy, too.

This year, the British Monarchy generated £1.77 billion to the UK economy. This includes a £50 million contribution for fictional shows like The Crown and Victoria, which offer a glimpse into the mystique of the Royal family. The figure also takes into consideration £550 million from tourism: in 2016, 2.7 million people visited Buckingham Palace alone.

When William and Kate married in 2011, the British economy was boosted by £2 billion, with £26 million being from Wills and Kate souvenirs and merchandise. Likewise for Harry and Meghan, brands and retailers will want to capitalise on the goodwill and excitement surrounding another Royal wedding. However, certain rules apply to businesses wishing to use images of the Royal family, or their associated symbols and phrases.

Image rights, known also as personality rights or rights to publicity, are not explicitly set out in the UK. To prevent someone from using a public figure’s image commercially without consent, English law instead offers protection through various privacy and intellectual property doctrines (see my earlier post, Fame and Fortune: How do celebrities protect their image?) However, above and beyond these protections, some laws apply specifically to the Royal Family.

Royal weddings have

Misleading statements under consumer protection law
Section 12 of the Trade Descriptions Act 1968 states that a person is guilty of an offence if they, in the course of business, give a false indication that their products or services are supplied to or approved by Her Majesty or any other Royal Family member.

The Consumer Protection from Unfair Trading Regulations 2008 added a subsection to Section 12, clarifying that trade or business activity must be “unfair” to be found unlawful. In simplified terms, “unfair” means that it both falls below the standards of good faith, and is likely to affect a consumer’s decision when making a purchase.

Misleading advertisements that imply a product has been officially authorised by the Royal Family would be considered unfair. For this reason, unless a product receives approval from the Lord Chamberlain’s Office (a department of the Royal Household) businesses should be very clear about stating that their products are not officially associated with or approved by the Monarchy.

Trade Mark protections for Royal images or emblems
Under the Trade Marks Act 1994, certain “specially protected emblems” may be incapable of being registered for trade mark protection. Section 4 specifically states that signs, designs, or expressions consisting of or containing a representation of Her Majesty or any Member of the Royal Family cannot not be registered unless consent has been given by the relevant Member of the Royal Family.

The benefit of registering a trade mark is that the registered owner can sue a non-owner if the non-owner attempts to use it. By limiting trade mark registration for Royal emblems, the Monarchy is effectively maintaining a monopoly on their symbols, images, and logos. (There are more complicated issues concerning the concept of “mere image carriers,” but that’s best saved for another post…)

Royal souvenirs are nothing new – my Mum has a cup similar to this one. It was originally owned by my Grandmother, and commemorates the coronation of King Edward VIII in 1937.

A more “modern” approach?
Although Royal photos and insignia may not usually be used for business purposes without permission from the relevant Monarch, Prince William authorised a temporary relaxation of restrictions for souvenirs commemorating his engagement and marriage. Companies were allowed to sell souvenirs and memorabilia featuring pre-approved photographs of the couple, as well as William’s full coat of arms – subject to certain rules.

Namely, the souveneirs needed to be in good taste, have no implication of Royal approval, and incorporate explicit wording such as “to commemorate the marriage of Prince William of Wales and Miss Catherine Middleton, 29th April 2011” to identify their commemorative function. While Harry and Meghan’s wedding is set to be a less lavish affair than William and Kate’s, their wedding is nevertheless a historic moment. Meghan is not only a celebrity in her own right, but a vocal feminist, activist, and entrepreneur.

Of course, her roles and responsibilities will change as she transitions into Royal life. In addition to stepping down from various organisations, she has paused her acting career and ceased making political comments on Twitter and Instagram. Nevertheless, her media savvy and Hollywood experience will certainly be a benefit for the Monarchy’s modern brand.