Who would have thought that a largely unknown and forgotten World War II relic would become popular in the 21st century? "Keep Calm and Carry On" was a slogan used in a propaganda poster produced by the British government in 1939 at the beginning of World War II in the hope it could be used to raise the morale of the British public. The poster ultimately had limited distribution with no public display, so little was known about this now pop-culture icon.
Rediscovered in 2000 by Stuart Manly who found it tucked away at the bottom of a box of books he bought at auction, the poster was about to get the publicity once planned for it.
After putting the poster up in his second hand bookshop, Barter Books, Manly started selling copies to admiring customers. In this day and age you know something's popular if it has a suite of parodies and that's exactly what has happened here. Some classic parodies of the slogan include "Keep Calm and Have a Cupcake" and "Keep Calm and Join the Dark Side", among others that can be found by searching online under "keep calm and..."
You would think that given Manly started this craze, if there were any intellectual property rights in the slogan, they would rest with him. But keep calm and carry on reading.
In 2011, the phrase was registered as a trademark in all 27 countries of the European Union not by Manly, but by Keep Calm and Carry On Limited, a business run by Mark Coop. As a result of owning the trademark, Coop technically has the right to stop anyone from using that trademark without his company's authorisation. However, given that Manly had been using the slogan since 2000, that is, prior to Coop's use and registration of the mark, this could give rise to a defence to an allegation or trademark infringement.
In any event, Manly and other businesses who had been using the slogan for years have applied to invalidate the trademark so that they and others could be free to use the slogan without threats of trademark infringement. We are still waiting for a decision on this issue but until then, this case highlights a few important things.
- Even if you have used a brand for a significant period of time, this does not stop other people from applying to register it, and in fact registering it, as a trademark in their own name.
- Keep an eye out for what's happening in the market place. If you have a brand that's valuable to your business, consider protecting it by registering it as a trademark. Don’t let someone else take advantage of your popularity and dilute your rights.
- Having a registered trademark does not mean that trademark will be registered indefinitely. There is a risk that your trademark may be revoked on the basis that it hasn't been used, has become generic, or should have never been registered in the first place.
So until we have a final verdict on this matter, you know the drill.
Kim McLeod is a partner and Catherine Fry is a solicitor at AJ Park.