It is not often that trade marks appear on breakfast TV, but this morning there were several minutes on a dispute about the use of "Keep calm and carry on" for goods. The clip can be seen on the BBC website.
Mark Coop, the owner of the company Keep Calm and Carry On (incorporated in February 2009), says in the clip that he has been using it for four years to sell goods. The story I have heard is that the phrase was printed in 1939 on leaflets and posters to encourage the British people to, indeed, keep calm and carry on in wartime conditions, but it was never used.
In October 2010 the company filed for an application for the mark with OHIM, the EU-wide registration body for trade marks. Registration occurred in March 2011 for the mark, with the goods covered by the 8 classes specified listed on the database entry for the mark. It's from the UK site, where they list it as a valid mark in the UK (it covers the entire EU). It is interesting that the goods sold by the company feature a crown above the phrase, which might be taken to imply government or royal approval or involvement, but the trade mark registration is only for the phrase.
The 8 classes are from the 45 classes of goods and services in the Nice Classification, and applicants list goods or activities within the classes where protection is sought. The UK IPO has a useful list of the classes. The idea is that different applicants can use the same mark for different classes so long as there is no conflict such as being confused about the source of the goods or services.
This has occurred: Keep Calm and Carry on Beverages Limited, incorporated in November 2010, filed the next day for British registration 2565406 which is for three classes involving beverages and transport, and then two applications in December for classes for infused drinks and for, perhaps oddly because of their company name, for contraceptives. These have all been registered.
Now a dispute has broken out, because Simply Printing 4 U, a Dorset start-up by Kerry Cade, has been told by e-Bay® that they cannot sell their mugs, mouse mats and posters on the site because of the registration by Keep Calm and Carry On. Cade, wife of army officer Jason, says "We are bitterly disappointed that we cannot sell items featuring ‘KEEP CALM AND CARRY ON’. To be an Armed Forces family and to be told we cannot use what is essentially a British phrase feels like a real kick in the teeth. It’s a huge blow to our business”.
The entry for the European registration on OHIM's trade mark database is annotated to show that on the 8 September Jason Cade filed a request to cancel the trade mark on the grounds of invalidity.
Reasons will have to be put forward such as lack of distinctiveness, or that it is a generic phrase that would be unfairly monopolised by a single company. My understanding (I am not a lawyer) is that this normally involves wording likely to be used in the trade -- "four seasons" for sleeping bags is an example. A phrase can however acquire distinctiveness if people come to associate it with a certain product, as shown by poll evidence.
I notice from the Keep Calm and Carry On website that they do not make it clear that it's a registered trade mark by using the familiar ® icon, nor is it used on their goods. While this is not required as far as I am aware in Europe (it is in the USA), it is always good policy to make it clear that you are using wording as a trade mark and that you mean to enforce it.