The Conservative Party made national news last week when they offered people the chance to win reusable water bottles in the style of those used by contestants on the ITV2 dating reality show Love Island.
The competition seems to have been designed to engage a younger demographic and collect contact details which could be used for subsequent political marketing campaigns. The competition was advertised on both the political party’s website and the @Conservatives’ Instagram Story, using #LOVEISLAND, #FreeMerch and #DontBeAMelt.
The official Love Island water bottles became popular merchandise after each of the contestants of this year’s show could be seen carrying personalised bottles around the villa. They are on sale to the public through the Official Love Island Shop. Unlike the bottles on the reality series, the Conservative’s bottles are branded with slogans such as “Don’t let Corbyn mug you off”.
Shortly after the potential infringement of the Love Island brand was highlighted and the promotion was reworded, removing all references to the words LOVE ISLAND.
Has ITV been “Mugged Off”?
This story raises a number of interesting questions around intellectual property infringement applicable not just to political parties, but brand owners everywhere. So, did the Conservatives go too far with this and deserve to be booted off the island or has the party stayed on the right side of the line?
ITV owns a number of registered trademarks in the UK for LOVE ISLAND, which are registered for a number of goods and services, including water bottles and the organisation, production and presentation of competitions.
Trade mark infringement happens when somebody who doesn’t own the trade mark uses, in the course of trade, a sign which is identical to the registered trade mark in relation to goods and/or services identical to those for which the trade mark is registered. A trade mark may also be infringed by use of a similar mark if there exists a likelihood of confusion on the part of the public or the trade mark has a reputation in the UK and the other person’s use of the sign takes unfair advantage of, or is detrimental to that reputation.
An intellectual property rights-holder, like ITV in this case, may also have rights under the law of “passing off” (which can protect unregistered trade marks), if they can prove they possess goodwill in their mark, another person has misrepresented that they are the rights-holder or that they are somehow linked, endorsed or associated with the rights-holder and this has or is likely to cause damage.
There are limited circumstances where one may use someone else’s trade mark without committing trade mark infringement (for example, where one has to refer to another party’s trade mark in relation to spare parts or refill accessories), but these do not apply here. One defensive tactic the Conservatives could have employed would be to argue that their use of Love Island was not in the course of trade, and therefore that there was no infringement. This would be difficult however considering the trade mark was used to promote the party and to engage with followers and potential members.
It is not surprising that the Conservatives quickly amended their original post to remove all references to the registered trade mark Love Island. Their post arguably raised the question whether the party had agreed an official brand tie-up or licence with ITV’s Love Island, suggesting that ITV could have, at least, a legitimate passing off claim against the Tories.
Even if this matter went to court and, in the end, a judge decided that the Tories were not in the wrong, quickly removing reference to the Love Island trade mark is a risk-averse corrective move. It is a quick way of nipping potential damage to ITV in the bud to try to avoid potentially costly legal action. Of course they were not successful in avoiding hitting news platforms and further embarrassing online commentary.
What can you do to Avoid Similar Mistakes?
We do not know whether ITV has instructed its lawyers to write to the Conservatives or whether the post was merely voluntarily amended because the party was alerted to the faux pas by its followers and the media.
Either way, there are valuable lessons to be learnt which may assist organisations in avoiding the prang of an intellectual property infringement claim at worst, or an embarrassing PR mess at best.
Firstly, always check if the mark you want to use is someone else’s trade mark. You can do this by instructing comprehensive, professional trade mark searches or you could have a look yourself on the UK and EU Intellectual Property Office’s registers and even by searching on good-old Google. It is important to do this even if you are not intending on applying a trade mark to a product itself, but planning on using it in hashtags and other text. This is often enough to constitute trade mark infringement and you may find yourselves on the wrong side of the line, which is possibly how the Conservatives got it wrong here as the bottles themselves were not branded with the Love Island trade mark.
If you want to use someone else’s trade mark but are unsure whether your planned use of that mark would constitute infringement then to be safe it is recommended you either drop the planned use of that trade mark or seek professional advice from an intellectual property lawyer.
Alternatively, a commercial option would be to approach the brand you are interested in directly to seek permission, or agree an official tie-up, sponsorship or licence agreement.
Although that brand may decide to pie you off if you don’t fit with their image, you will have certainty as to how to move forward and, hopefully, avoid the mistakes we as IP lawyers see again and again.