Marmite – 1; BNP - 0

The facts in the recent case of Unilever plc v Griffin were unusual. However, the case is a good illustration of the way in which different intellectual property rights have their strengths and weaknesses depending on the circumstances.

The British National Party planned a party political broadcast, a version of which appeared on the party's website. The broadcast featured a jar of Marmite alongside the slogan “Love Britain Vote BNP”. Unilever, who owns the Marmite brand, got wind of the planned broadcast and applied for an interim injunction – i.e. an injunction before trial – to stop the broadcast. To get such an injunction, Unilever needed to convince the Judge that there was a reasonably good chance that it would win at trial.

Unilever put its case in three ways. Firstly, it alleged infringement of its registered trade mark “Marmite”. However, the Judge did not think that this was a runner. He did not consider that the BNP’s use of the mark had been trade mark use. It had not been use in the course of a trade being carried on by the BNP. Nor was it use in relation to goods or services. Specifically, the Judge did not think it could be said that the BNP was supplying informational services. However, Unilever had more luck with its other arguments. The Judge considered that it was highly likely that Unilever would establish at trial that it owned the copyright in the artistic work on the label of the jar, and that the work was still in copyright. He also thought that Unilever’s passing off claim was likely to succeed. Evidence in the form of comments on the BNP's website showed that some viewers had taken the use of the image of the jar to indicate Marmite’s endorsement or sponsorship of the BNP. Further, the Judge thought that it was highly arguable that an association with the BNP would damage the reputation of Unilever's trade mark. Accordingly, on the basis of copyright infringement and passing off, the Judge granted Unilever an interim injunction.

If you would like to know more, please contact Simon Daw or Nick Crook.

Filed: 03/12/2010 11:42:32