The defence sector is a global industry that provides enormous value to the United Kingdom through its exports to many countries. Research and development is hugely important to ensure that the UK remains one of the leading manufacturers and suppliers of arms and military products. As with all new technology and products, it is important to protect the intellectual property surrounding this technology.
The general public may not generally associate trade marks with the defence and military sectors, but there are many well-known names that are protected as trade marks; for example, EXOCET, CH-47 CHINOOK, NAVY SEALS and EUROFIGHTER.
It is just as important for companies and organisations in the defence and military sectors to protect their trade marks for the same reason as other more publically-facing industries, namely, to avoid confusion with other products and to ensure competitors do not take advantage of their reputation.
Factors and Issues specific to the Defence Industry
When a UK or EU Trade Mark has been registered for five years, it is necessary to provide evidence that the trade mark has been used for the relevant goods in order to be able to enforce it against third parties. For fast-moving consumer goods, the owner will need to show a reasonably high number of sales as these goods are generally low-cost and rely on a high number of sales. For the defence and military sector, however, very specialised products such as aircraft, submarines and tanks are extremely expensive and will require a much lower level of sales in order to demonstrate that the trade mark has been put to use. For example, the sale of one aircraft carrier over a period of five years may be sufficient to prove genuine use.
In comparison to most consumer products, defence and military products have a small number of potential customers as the majority are only purchased on behalf of countries’ governments. The highly specialised nature of these products (e.g. bombs, missiles, rockets, navigation equipment) and the restricted channels through which they are sold means that the prospect of confusion with other similarly-named products is more unlikely than it might be with other types of goods. For example, a customer purchasing a TOMAHAWK printer is unlikely to think that product has any association with a TOMAHAWK cruise missile.
Another interesting aspect of trade mark logos in the defence and military sectors is that the UK Trade Marks Act specifically prevents registration of trade marks which consist of, or contain, “the Royal arms or any of “the principal armorial bearings of the Royal arms, or any insignia or device so nearly resembling the Royal arms or any such armorial bearing as to be likely to be mistaken for them, or it”. “Principle armorial bearings” is considered to mean the shield, motto, supporters and crest of the Royal arms, both individually and separately.
In 1999, the Ministry of Defence (“MoD” / The Secretary of State for Defence) applied to protect the red, white and blue RAF roundel logo in a number of Classes, but Class 25 – covering clothing – was opposed by Arcadia Group. The MoD argued that the roundel was inextricably linked to the RAF having first been used in the First World War, whereas Arcadia Group argued that the roundel logo had been used widely on clothing for many years and is not therefore exclusively associated with the RAF, particularly in relation to clothing. The UK Office held that customers are not likely to see the roundel logo as an indicator of trade origin, but rather as a decorative motif, which they could associate with the Mods (not the MoD!), the Royal Air Force or a variety of suppliers. The UK Application was therefore refused in relation to clothing in Class 25 (but was registered for goods and services in many other Classes).
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