Category Archives: Intellectual Property

Intellectual Property

Marmite v BNP

A rather amusing story this morning about Unilever, the owners of Marmite, threatening the BNP with an injunction.

The offending incident is a bizarre version of a BNP election broadcast with a picture of a Marmite jar in the corner. The tensions trace back to an advertising campaign by Marmite between the “Love Party” and “Hate Party”. The latter is said to be a clear allusion to the BNP, with the party’s leaders sharing similar biographical details and backdrops. The BNP decided this was “[a] disgraceful smear” and retaliated with their version of the broadcast.


Although details are not forthcoming, Unilever are likely going to be claiming infringement under section 10(3) of the Trade Marks Act 1994. This prohibits use by third parties of a trade mark that has a “reputation” where to do so “without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.” In this case they will likely claim that the BNP’s advert causes detriment to the mark’s “repute” by association with a racist party. Given that “due cause” is not fully defined, they might be able to run a defence given that Unilever fired the opening salvo with its parody campaign. Being at the bottom of the food chain, I wouldn’t be able to say whether this has any chance of succeeding. My guess is that it won’t.

This shouldn’t really come as a surprise to the BNP though; Unilever, like Procter & Gamble, make great efforts to preserve the reputations of their brands. The associations that could arise from appearing in a BNP advert are obviously something they would want to prevent. The BNP may have been hoping for a bit of extra publicity here, which they’ve got, but don’t seem to have taken the risk of being sued into account, vacillating between a “you started it” and “it’s nothing to do with us” set of responses.

That being said, Unilever are right: “The Official BNP Marmite Poll” on their website has the “Hate it” faction storming ahead of the rival “Love it” option by 68 to 32%. They also had a big attack piece about the product on their website that has since been removed (you can find a copy of it here). The website administrators may have taken the order not to smear Marmite a bit too literally.

UPDATE: Geeklawyer has now picked up on the story. The more likely defence the BNP have is that their use of the Marmite logo is not “in the course of trade”. Should have noticed that myself.

Digital Economy Bill: Blind Arrogance

Just days after libel reforms were put on hold to consider them more fully, we witness the shameful sight of government and opposition rushing throught the Digital Economy Bill with virtually no debate.

I’m not denying that there is a strong case for the law. But there is an equally strong public interest that has been neglected. The potential impact on public WiFi, the lack of procedural safeguards and the objections of ISPs themselves have been overriden to appease a powerful lobby.

The music industry has a valid case, but t doesn’t feel like it’s fully made. Yes, filesharers lose the companies money on an absolute basis. But they also are more likely to buy music than others: filesharering can act to promote new talent and operate as try-before-you-buy. Some of the music industry lobbying looks like a protectionist attempt to turn the clock back rather than adapt to the new business environment. Running the Bill through without a proper debate failed to examine either case properly.

Even assuming that the industry’s essential case was right, that doesn’t automatically justify such a draconian piece of legislation. The procedural safeguards are weak, and the nebulous grounds for cutting off access worrying. It is typical “something must be done and this is something” thinking.

IP rights have to be balanced against the public interest. One man’s IP violation is another’s creativity: “Good artists copy, great artists steal”. Granting one interest an IPR usually means that someone else’s endeavour is restricted. The legislative process has to be a delicate balancing act. Blindly supporting one side is not Parliament’s job. By running the Bill through washup, Parliament failed to challenge the music industry’s assumptions, neglected their duty to balance that against the public interest, and trashed more of our procedural rights.