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.