Dispute over iconic poster

The "Keep Calm and Carry On" poster is the subject of a trademark battle. Anna Sheinman reports

An intellectual property dispute has erupted over the wartime "Keep Calm and Carry On" poster in a case that highlights the distinction between trademark and copyright.

The saga began in 2001 when Stuart and Mary Manley, owners of Barter Books in the North East of England, discovered one of the posters in a box of books they had bought at auction. Although millions of the posters were printed during the second world war, they were never used and were later recalled and destroyed.

The poster was displayed in the Manleys' bookshop, and they sold many thousands of copies along with other goods bearing the image. The couple allowed other traders to make copies and sell them as long as they acknowledged the source.

The Manleys did not seek intellectual property protection for the work as they did not believe it possible. However, in April 2012 businessman Mark Coop, who sells goods bearing the slogan, registered the European Union trademark "Keep Calm and Carry On" and attempted to prevent others selling goods featuring it.

Newcastle law firm McDaniel & Co is acting for the Manleys on a pro bono basis, attempting to revoke the EU trademark. Partner Niall Head-Rapson explained the two reasons why he was sure the claim would be successful.

First, he said: "Copyright was created to protect artwork," for example films, music or paintings and "the poster is artwork." There are no claims to copyright over the poster because copyright belongs to the creator. Although the work was created by the government, the Crown does not wish to assert its rights. By trying to prevent others from using the image using trademark law, Mr Coop is asserting a monopoly right over a piece of work he does not own."

Second, "A trademark acts as a badge of origin, it says 'when you see that mark, you know these goods come from me'", he explained. Examples include Chanel, Nokia or Coca-Cola. However, Mr Head-Rapson believes the way in which "Keep Calm and Carry On" is being used by Mr Coop is not as a badge of origin but as a description. When a consumer is told a mug is a "Keep Calm and Carry On" mug, they do not understand that mug is made by a particular person, but that it bears that iconic image.

Although the outcome will not affect Barter Books, since it was trading before Mr Coop's trademark was registered, it does affect many traders selling "Keep Calm and Carry On" goods on eBay because of eBay's highly cautious approach to trademark infringement.

Ultimately, Mark Coop may benefit little from a trademark, as much of the market has now moved on to variations of the slogan. For variations on a trademark to infringe that trademark there must be a likelihood of confusion and, as Mr Head-Rapson put it, "I don't think people seeing 'Save Water and Drink Champagne' are going to be confused and think it's the same as 'Keep Calm and Carry On'."