The risks of badging without honour, and flouting the flag

Badges, shields, flags and other similar marks are regularly considered by organisations as devices around which to build identity and goodwill. Use by sports clubs of club badges is a great example.

Another example is the saltire. The saltire particularly, along with being the national flag of Scotland and a key symbol (along with the lion rampant) of national identity, is regularly considered with respect to product or corporate branding, both within Scotland, but also abroad with respect to territories where there is a significant affinity with Scottish sourced goods.

Trade mark laws

Within the UK, the Trade Marks Act 1994 states that a trade mark which consists of, or contains, a representation of the Scottish flag shall not be registered if it appears to the registrar that the use of the trade mark would be misleading or grossly offensive.

The Act also states that a trade mark which consists of or contains the Royal arms, or any of the principal armorial bearings of the Royal arms, or any insignia or device so nearly resembling the Royal arms or any such armorial bearing as to be likely to be mistaken for them or it, or any representation of the Royal crown or any of the Royal flags, shall not be registered unless it appears to the registrar that consent has been given.

The Act also states that provision may be made by rules prohibiting in such cases as may be prescribed the registration of a trade mark which consists of or contains arms to which a person is entitled by virtue of a grant of arms, or insignia so nearly resembling such arms as to be likely to be mistaken for them, unless it appears to the registrar that consent has been given by or on behalf of that person.

The Paris Convention (to which the UK is party) also gives rise to certain restrictions. The Convention states “The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view”.

People often think that if relevant registries have no issue with a mark proposed by them for registration, then that is the end of the matter.

The Court of the Lord Lyon

However, one also must consider the role and authority of the Court of the Lord Lyon. The Court of the Lord Lyon is the heraldic authority for Scotland, and deals with all matters relating to Scottish armorial bearings.

The principal administrative function of the Lord Lyon relates to the granting of armorial bearings by letters patent to such persons and corporations as the Lord Lyon in his sole discretion considers to be ‘virtuous and well deserving persons’. Any person who wishes to use an armorial bearing must petition the Court for a grant of arms, or (if they can show they are an ancestor of a person who held a grant of arms) for a matriculation showing the place within the family of those arms.

When a grant or matriculation is obtained, details are recorded in the public register maintained by the Court. Persons who hold rights to coats of arms are often referred to as armigers.

Armigers

Armigers, where their coat of arms is wrongfully used, may present a petition and complaint against the offender in the Court of the Lord Lyon or a petition for interdict against further wrongful use in either the Court of Session or the Court of the Lord Lyon. Further, an armiger wronged by the wrongful assumption of his arms has the right to raise an action for damages.

The Procurator Fiscal of the Court of the Lord Lyon

The Court of the Lord Lyon includes a Procurator Fiscal. The duties of the Procurator Fiscal include prevention of the wrongful assumption of armorial bearings, and other heraldic law abuses.

Actions in the public interest may be raised by the Procurator Fiscal, against the wrongful assumption of another person’s coat of arms or of a coat of arms not properly constituted by a grant under the Lyon King of Arms Acts. There have been a number of public interest cases over time.

Unauthorised matriculation

Additionally, no armiger, including a corporation, may without the warrant of the Lord Lyon authorise others to bear his or its arms, for this would infringe the statutory authority of the Lord Lyon and amount to an attempt to defraud the Treasury of the statutory dues on a grant or matriculation of arms.

Consequences

Where a person is found to have displayed or used arms without authority, the Lord Lyon may impose a fine of £100, but perhaps more importantly impose a transfer to the Crown of all the articles upon which the arms appear.

What is an armorial bearing ?

What amounts to a coat of arms / armorial bearing has yet to be definitively determined, but the present view appears to be that any device other than letters or numerals, displayed on a shield, lozenge, cartouche or rectangular banner or set upon a wreath, crest, coronet or chapeau amounts to an armorial bearing, and is as such subject to the provisions of the Lyon King of Arms Acts.

The lion rampant and the saltire

By charter of novodamus, later ratified by Parliament, Charles II granted arms concerning inter alia ‘the office of bearing our insignia within our said realm of Scotland’, these being ‘standards, coronets, pincels and other ensigns of war and battle of whatever shape or fashion or colour, as well of foot as of horse’ to Charles Maitland. A descendant of Maitland later matriculated arms in the form of flags featuring the lion rampant and St Andrew’s cross (the saltire).

As such, use of the lion rampant or St Andrew’s cross (saltire) can often impinge on the jurisdiction of the Court. Those that do not recognise this can often find themselves in difficult territory, with problems being ever more acute when products are already in the market.

The prudent operator, when dealing with anything which might involve the lion rampant, the saltire, or any other armorial bearing, should take advice at an early stage.

For more information on our brand related services contact:

Jamie Watt | 0131 247 2513