Protect a brand? You’ll Be Lucky

So Camelot has been forced to abandon plans to use the phrase ‘Be Lucky’ in its forthcoming advertising, after Littlewoods Gaming stole its thunder by using the same strapline in a football pools campaign which broke last week.

Following Marketing Week‘s exclusive, which revealed that Camelot was consulting its lawyers over Littlewoods’ Be Lucky campaign, the two companies issued a joint statement yesterday (Tuesday) saying they don’t want to confuse consumers by using identical straplines. Instead of Be Lucky, Camelot is to use an alternative strapline which it says its ad agency, Abbott Mead Vickers.BBDO, has already developed.

Littlewoods has denied that its campaign was a spoiler and points out that it had lodged an application to register Be Lucky as a trademark weeks before the news broke that Camelot intended to use the phrase. Camelot argued that Be Lucky could not be registered as a trademark because the words were too general. Nevertheless, because Littlewoods had already begun using the phrase, it was effectively forced to give way and opt for an alternative.

Camelot and Littlewoods were not the only companies to call in the lawyers to resolve trademark disputes last week. It is ironic that one of the most distinctive brands created within the last few years – Orange – was itself embroiled in a dispute, with easyGroup, over the use of the colour that it is named after.

The mobile network claims it owns the rights to use the colour orange within the telecoms market. But easyGroup, which has spent millions establishing and protecting the ‘easy’ brand and its orange corporate livery around the world, argues that this is not the case. It points to Sainsbury’s long association with the colour orange and that company’s recent foray into telecoms.

Orange and easyGroup are scheduled to meet on Thursday later this week in an effort to resolve the dispute.

These two cases indicate that trademark law can be a grey area and that unless brands take protective measures early on, they risk having to spend thousands of pounds defending their identity from encroachment, intentional or not, by commercial rivals.

Distinctiveness, say the lawyers, is the key to protection. The more unusual a brand, the easier it is to protect, provided steps have been taken to register the various components (name, slogan, shape, design, colour or even smell) in all the business sectors and geographical markets the brand will operate in. But it isn’t always that straightforward. Earlier this year, Nestlé was prevented from holding rights to the phrase ‘Have a break’ because it was considered to be common parlance, and from securing protection for the shape of its Polo mint-with-a-hole without reference to specifics, such as size and colour. Yet Adidas successfully protected its three stripes by taking legal action against Stead & Simpson, eventually reaching a settlement whereby the shoe retailer agreed to withdraw its own four-stripe shoes from sale.

And even if a brand has made its mark and is trademarked to the hilt, there comes the tough task of enforcement. Each time Louis Vuitton produces a new handbag design, it is only a matter of time before cheap fakes start appearing on market stalls.

As Camelot has found out, for brands that want protection in the future from commercial rivals, the world of trademarks can be something of a lottery.

Amanda Wilkinson, Deputy Editor

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