Toilet seat from Urban Junkie

Consumers bought near enough 30 million St George's flags during the 2002 World Cup final, and spent approximately £839 million on all types of English merchandise across the same period - the majority of it 'unofficial'.

And this time round, with the added Rooney-hope hype, the event looks set to become even more of a market trader's dream. So can anyone cash in on the cross? Well, it appears so.

According to IP specialist Amandeep Singh, a solicitor with Islington-based law firm Briffa, when determining whether the St George’s cross can be used on goods or services, three areas of law must be considered: copyright law, design right law and trade mark law.

‘The design of the English flag will not be protected by copyright as it was designed too long ago to still have copyright existing or subsisting in it,’ says Aman.

‘In relation to trade marks, the St George’s Cross and, indeed, any flag of the Untied Kingdom is protected by the Trade Mark Act 1994. Section 4(2) of that Act says, “A Trade mark which consists of or contains a representation of the national flag of the United Kingdom (commonly known as the Union Jack), or the flag of England, Wales, Scotland, Northern Ireland or the Isle of Man shall not be registered if it appears to the registrar that the use of the trade mark would be misleading or grossly offensive.” 

‘This means that no person can register the St George’s Cross as a trade mark. There are similar provisions in relation to design right law and so the English flag could not be registered as a design at the design registry either.

‘This merely means, however, that you cannot claim the exclusive right to use the St George’s Cross as a design or a trade mark. Significantly, it does not prevent the use of the St George’s Cross on goods or services. The St George’s Cross, therefore, can be used on goods and services,’ says Amandeep, but there are some limits, he cautions.

Made in Britain

Any use of the St George’s Cross must not be such that it would mislead the public into assuming that the goods or services on which the cross was displayed was manufactured or originated in England where it did not. What this means in practice is that you should not use the St George’s Cross on products made outside the England or alternatively you should indicate prominently on any such goods that they were in fact made outside England.

The Red Cross

Anybody who wants to use the St George’s Cross symbol must make sure he or she does not inadvertently indicate a connection with the Red Cross symbol which is very similar.   If a version of the cross is applied on to goods and services so as to either:

1.        suggest to the public that a connection exists between the organisation and the mark used or

2.        is likely to mislead the public as to the existence of a connection between the user of the mark and the Red Cross,   the mark can only be used with the permission of the Red Cross (Section 58(4) of the Trade Mark Act 1994).

Brand England

It seems patriotism, then, has become a valuable brand. Branding and Marketing specialist David Hensley says: ‘The question of what the "brand" here is an interesting one. To many the brand is England, and the St George's Cross or flag is just the logo or symbol. 

‘The worth of the St George's Cross "logo" is clearly large - there is an awful lot of merchandise being purchased that would not have been bought without it. There is thus a differential cashflow stream to a lot of businesses that is greater than it would have been without the use of the St George's cross logo, but it would be difficult to estimate it," says David.

‘The future cashflow stream is also difficult to forecast, as I am sure that it will be much greater if England win the World Cup than if they go out in the first stage. But the real value of the brandmark is the net present value of this differential cashflow stream, discounted at a rate that accounts for the risk in the future cashflow .

“I think that England will survive as a brand long term, so the discount rate should be relatively low as it is a secure cashflow, though with two or four-year cyclicality and some uncertainty depending on team performance!’

So, St George may have, in myth, slain a dragon, but in reality  it sems he gave birth to a golden goose.    

Amandeep is a solicitor of Briffa, specialists in intellectual property law.

He advises on both contentious and non-contentious intellectual property and information technology matters and has been involved in a number of widely reported cases. Aman lectures and writes on IP matters and has a regular column in Asians in Media magazine.

http://www.briffa.com

David Hensley is a partner of Hensley Partners, delivering marketing and branding strategies.

http://www.hensleypartners.com