Coast clear for unofficial Diana memorabilia

The UK Patent Office has rejected an application by the Memorial Fund to trademark the face of Princess Diana.  This means that anyone is free to use her image.

The application, filed in October 1997, consisted of 26 photographs of the princess by photographer Tim Graham.  The application covered a wide range of goods, from porcelain to playing cards to chronometric instruments.

The Patent Office rejected the trade mark because it is not distinctive.  The face of the princess as reproduced on goods such as tea cups is decoration, not a “badge of origin” distinguishing those products from other manufacturers’ goods.

Many manufacturers have been holding back from producing Diana merchandise pending the trade mark application.  The fund has taken an aggressive approach towards unauthorised merchandisers and few have so far been prepared to challenge them.

One company which did was the Illinois-based souvenir company Bradford Exchange, which produced a musical plate which played the original melody of Candle in the Wind alongside the slogan “Keep her light alive”.  Bradford Exchange sued the fund last year in Delaware seeking to establish its legal right to produce Diana memorabilia without a licence.

Public response to the fund’s trade mark activities has been mixed.  Princess Diana was “the people’s princess” and the people have been distinctly uneasy about the fund’s attempts to control the use of her image.  In contrast with most other European countries, and the United States, UK law gives little protection to celebrities over the use of their image, beyond libel laws and passing off (where unofficial merchandise is portrayed as official).  A trade mark consisting of the word “Elvis” has been held not to be distinctive and the Spice Girls failed to stop unauthorised merchandise last year which did not carry an “unofficial” tag.  Unauthorised use of celebrity images in press and poster advertising is commonplace.

Celebrity photographers and photo libraries with celebrity collections enjoy a healthily unregulated market in the UK.  The Princess Diana trade mark decision will be welcome confirmation of the inalienable right of the public to make free with the images of those celebrities who, at the end of the day, owe their star status (and wealth) to that public.

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