Keep Calm and Get a Trademark: The IP Woes of “Keep Calm and Carry On”

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Originally commissioned by the Government during World War II, should this historically significant be placed squarely in the public domain? Or should the intellectual property be up for grabs?

You’ve all probably seen one of iconic red “Keep Calm and Carry On” posters. In London, these posters are everywhere — especially in souvenir shops. You can also find posters and other memorabilia with text based on the original — “Keep Calm and Eat A Cupcake”, bedding with “Keep Calm and Sleep On”, “Keep Calm and Use More Hot Sauce” and more! Here, you can even design your own.

Beyond the popular puns and mass production, there are some parts of the story you might not know — for example, the intellectual property battle taking place behind the scenes. If there’s money to be made, usually the advice is to protect your property. The “Keep Calm” slogan, however, is stirring up debate on what and whom the law should protect versus what and whom the law actually protects.

Let’s take a look at the history books to see how “Keep Calm and Carry On” came about, then we’ll dive into the juicy intellectual property law issues and look at how the law doesn’t always reflect a sense of justice.

The history
While waiting for the Nazi invasion druing World War II, King George VI and the British government assigned the task of boosting morale to the Ministry of Information (MOI). Morale was to be propped up through media (posters, to be specific), and the MOI was given very precise instructions about what message the posters were supposed to convey, along with other requirements.

The posters were to have a “typographical distinction by the use of a ‘special and handsome type’; Initial designs were to include a message ‘from the King to his people’; Posters would also include a ‘statement of the duty of the individual citizen’. These are just a few of the requirements for these wartime posters.

The MOI designed three different posters: The first, “Freedom Is In Peril. Defend It With All Your Might”; the second, “Your Courage, Your Cheerfulness, Your Resolution Will Bring Us Victory”; and the third, “Keep Calm And Carry On”. All three posters were ready for public consumption by 1939. The first two posters, “Freedom…” and “Your Courage…” were widely distributed across England — found in offices, public transportation and on the streets. The last poster, “Keep Calm…”, was kept back from distribution until invasion was imminent but the poster was never shown to the public. After the war, all three of the posters were promptly taken down and destroyed. Most of them at least…

Up for the taking?
In 2001, an original “Keep Calm and Carry On” poster was discovered by Stuart and Mary Manley, owners of Barter Books. The poster was found in a box that the Manley’s had purchased at an auction. Once the Manley’s found the poster, they framed and displayed it in their bookstore; garnering a lot of interest, they began to sell copies of the original.

In 2007, a former TV producer, Mark Cooper, started selling the “Keep Calm and Carry On” posters, along with mugs, pillows, blankets, etc., under the company Keep Calm and Carry On Ltd. Mr. Cooper then went on to apply for a UK Trademark with the Intellectual Property Office, but he was denied. Following the rejection from the UK, Mr. Cooper applied for an EU Trademark with the Office of Harmonization for the Internal Market (OHIM) and is now the legal owner of the slogan under EU law.

According to the OHIM database, Mr. Cooper and his company are only registered for eight separate Nice Classes where his company may use the slogan. “All of the goods and services in the global marketplace are categorised by ‘classes’” and there are 45 Nice Classes total. Other companies have trademarks for the slogan in different Nice Classes — mainly for beverages and related products.

However, Mr. Cooper’s trademark now has a “Registration Cancellation Pending” status — the application is in the process of being cancelled due to invalidity, which will retroactively remove the registration.

The second application to OHIM by Mr. Cooper and company applies for three separate Nice Classes. The second try has been met with opposition and is pending a hearing. (Sidenote: this second application is attempting to cover Nice Classes related to some random and arguably absurd categories like meat products and ropes. Ropes?! Because when someone is kidnapping me, I want to remember to “Keep Calm and Carry On”. I think there maybe a market for this with Republicans...)

Why did Mr. Cooper go to the EU? Because European Union Law is supreme over the laws of individual members states. So, if the EU rules that the Trademark is valid then the UK must follow suit, thus giving Mr. Cooper license to serve cease and desist letters to anyone selling the slogans he had registered. Mr. Cooper served letters to eBay and any eBay member selling “Keep Calm” paraphernalia is restricted from doing so.

Keep calm and go international
Mr. Cooper also applied for trademarks in the United States and in Canada. The United States Patent and Trademark Office’s (USPTO) website reflects the registered trademark as of 6 December 2011 (Registration Number: 4066622). The Canadian Intellectual Property Office did not register the slogan.

A sense of loyalty despite the law
While Mr. Cooper and his company may hold a trademark under EU law, that doesn’t mean people are on board with the way he gamed the system. There seems to be a sense of loyalty to the idea that the slogan should be in the public domain. From a grassroots petition that is calling for the EU to revoke the trademark,to supporting tweets from other bookshops, to corporate assistance from Trade Mark Direct (a UK trademark business that has started a campaign to oppose the EU trademark).

The Manley’s said they never thought to register the slogan because they felt it belonged to the Crown, the government, and the people. In the past, those interested in using the “Keep Calm” phrase have asked the Manley’s permission for use of the slogan and the Manley’s, in return have simply asked for acknowledgement.

First to file or public domain?
This whole story brings up very interesting issues about intellectual property laws in the UK, EU, and around the world. Since the King and Government originally commissioned the work on these posters, it was likely that they fall under Crown Copyright — a special classification of copyright for those works commissioned by the Crown. This type of copyright has a duration of 50 years from the time the work is published, after which it falls into the public domain.

Even if the posters had been trademarked outside of the capacity of the Crown, trademarks in the UK are valid for ten years and must then be renewed every ten years subsequently. Since the posters were promptly destroyed after WWII, it seems unlikely that anyone would have remembered to renew the intellectual property so they would again have fallen into the public domain.

This leaves us with the question: should a man who had nothing to with the creation or discovery of the poster be the only person who can profit from the historic slogan? Or should the poster be free for all to use and sell?

For a more visual take on the history of this famous British slogan, check out this video by Barter Books.

About Kira O'Connor

Kira graduated from of U.C. Berkeley with a degree Mass Communications and Media Studies and will graduate from the University of Oregon School of Law in May 2012. Kira has worked in entertainment and media since high school, and during college she worked at Universal Music Group and the Cal Berkeley television station. In law school, her focus has been on sports, entertainment, and intellectual property law. When her face isn’t buried in case law, she enjoys triathlons, adoring baby animals, and taking jumping pictures. Follow her on Twitter @kiraoconnor
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