Tartan…whisky… haggis…ceilidhs… like many other countries Scotland has unique cultural identifiers. Some of these identifiers include assets such as family tartans and coats of arms that have been passed down generations. Protection of these assets is important. In this short blog, we consider the (sometimes unusual) safeguards that apply to the use of tartans and coats of arms in Scotland – and how people can ensure their intellectual property rights are protected. We also look at the questions that you should ask if you are buying or investing in a business in Scotland, or acquiring a property such as a castle or stately home that might be associated with a particular coat of arms or tartan.
Intellectual property rights in tartan
Although not exclusive to Scotland, tartan has long been associated with Scottish culture. The Scottish Register of Tartans Act 2008 (the "Tartans Act") describes a tartan as "a design which is capable of being woven consisting of two or more alternating, coloured, stripes which combine vertically and horizontally to form a repeated chequered pattern".
Traditionally used to make items of Scottish dress such as a kilts, tonnags, and arasaids. Most Scottish clans had their own unique tartan pattern (a "sett") and this was used a symbol of the clan's identity. Today there are thousands of recorded tartans available not necessarily tied to a specific clan or family. Many corporate entities have developed their own tartans which fulfil an important role in that business's identity and are accordingly reserved for that company's exclusive use.
Tartans which meet certain eligibility requirements can be registered with The Scottish Register of Tartans under the provisions of the Tartans Act. The Keeper of the register decides whether each application meets the requirements to allow entry on to the register.
While the register is a useful resource which records other designer and owner of each tartan (and whether third parties are allowed to use it) inclusion on the register does not provide any protection from being copied and does not affect any other intellectual property rights which may be available to a rightsholder.
The main protections arise from:
- Copyright in the design of the sett as an artistic work. Copyright arises automatically without the need for registration. Copyright prevents someone from replicating of copying the original artistic works of another. The main problem with copyright in tartan designs is knowing who owns the copyright given that many traditional tartans are several hundred years old, but this is where the register may be of help. If the tartan is recently created, you may need the designer's permission to replicate it, if there is not already a contract in place transferring ownership of the copyright. Such information can generally be found on the Tartan Register.
- A registered design right with the Intellectual Property Office. A design right protects the overall appearance of a pattern. There is often overlap with copyright as above, but a registered design right often assists in establishing ownership of the tartan and therefore being able to stop infringement.
- A registered trade mark with the Intellectual Property Office. For example, Historic Environment Scotland holds a trade mark for its tartan. For a tartan to be registered as a trade mark it must meet the normal standards of having "distinctive character". Like design rights, a registered trade mark provides owners with an exclusive right to use that tartan and can more easily enforce their rights against people who use or reduce their marks without permission.
Coat of Arms in Scotland
A Coat of Arms ("Arms") is a design which identifies a specific person, family or organisation. Many popular businesses have their own Arms, such as Marks & Spencer and Tesco. While trade mark law is harmonised across the UK, Scotland has specific rules in relation to the use of coats of arms.
Coats of Arms were historically used for military purposes but as this use declined, there were more commonly used on seals and to identify an individual's property. For individuals, they tend to consist of four key elements: shield, helmet, crest and motto. For corporate entities and other organisations such as councils, schools and universities, they only tend to have a shield.
One of the key benefits of having a Coat of Arms is that your business or organisation will have a completely unique logo that can be used for all forms of branding such as clothing, stationery and literature. They can sit alongside intellectual property rights, such as trade marks.
It is also a good way to show that the business or organisation has a link to a particular group or section of the public. For example, it is very common for sports clubs to have a coat of arms that is then used on team clothing and other attire. It can also associated with a mark of quality for a particular product.
What rules apply on the use of coats of arms in Scotland?
Scottish heraldic law makes Arms the heritable property of one person or entity at a time, and the lineal descents of that person, rather than land or buildings. As such, any transfer of ownership of a piece of land does not allow the new owner to make use of the Coat of Arms of the previous owner.
The Register of All Arms and Bearings in Scotland records every Arms registered in Scotland since 1672, and lists the owner. The Register is maintained by the Lord Lyon, who also is responsible for granting new Arms.
Applications for Arms are made by formal petition to the Lyon Court and can ordinarily only be made if you reside in Scotland or own property or land in Scotland. A form must be completed, samples of which are provided on the Lord Lyon's website. The form of petition will vary depending on what is being applied for and there are four different types of petition:
- petition for a new Coat of Arms for an individual;
- petition for a new Coat of Arms for a company;
- petition for a grant of Arms to an ancestor; and
- petition for a matriculation of Arms – this is where a younger descendant applies for Arms with a difference to the ancestral Arms belonging to a parent.
This process can be fairly costly and generally takes between ten to twelve months from petition to the Arms being granted. There is a fee which is set by statute and covers government dues, the heraldic painter's fees and costs of materials for preparing the Letters Patent or Extract of Matriculation.
If you are applying for a grant of Arms to an ancestor or as a descendent, you must provide the relevant genealogical records including birth, marriage and death certificates and testamentary writings, that show the court that you are a true descendent of that ancestor.
If Arms are granted, they are recorded in the public register and protected under the various Lyon King of Arms Acts passed as early as 1592. Infringement of registered Arms is dealt with by the Procurator Fiscal to the Court of the Lord Lyon, who has the legal power to prosecute any offender under the Scottish criminal courts system.
The protections conferred on heraldic Arms is unique to Scotland: although England has a similar register of arms, Arms holders in England must rely on civil law to reclaim suffered losses, and the courts do not have the same power of seizure as the Lyon Court does.
As a result, many consider the Register of All Arms and Bearings in Scotland to be an early form of trade mark register. Owners of trade marks can also gain additional protection by registering the Arms as a figurative trade mark with the Intellectual Property Office. For example, see the Law Society of Scotland trade mark which features heraldry within the figurative logo.
Do I need to register my Arms with the Lord Lyon?
Yes. Arms are designed by the Lord Lyon in discussion with the petitioner. The use of any Arms that have not been granted by the Lord Lyon risks prosecution. While prosecution is relatively rare, there are a number of instances of action being taken against individuals and businesses for the use of unauthorised Arms.
You should therefore be careful about use of any logo that incorporates a shield and other heraldic symbols.
What do I need to think about when acquiring a business or property in Scotland?
Given the strict rules on use and transfer of tartans and Coats of Arms, it is important that appropriate diligence is carried out when acquiring a business or property in Scotland.
- What logos does the business / property use, and could it qualify as a Coat of Arms? If so, has that Coat of Arms has been registered with the Lord Lyon and is the Seller the registrant? If the Coat of Arms is not registered, then continuing to use it will be an offence.
- Simply buying a property or a business will not automatically entitle the buyer to use any Coats of Arms previously used by the seller. For example, buying a country estate would not automatically entitle the buyer to use the Coat of Arms of the selling family in relation to a hotel to be operated from the estate. If the transaction is an asset transfer rather than a share purchase, then the buyer should think about whether it is likely that the Lord Lyon will agree to the transfer and whether use of the Coat of Arms is a key part of the business and its potential value.
- Does the business / property or seller use any tartan? If so, has that tartan been registered in the Scottish Register of Tartans, and is the Seller the registrant? Who owns the intellectual property rights? If the tartan is to be transferred with the business, the Seller will require to be update the Tartan register and transfer copyright and any registered design to the Buyer.
- If any tartan or Coat of Arms is deemed to be included in the sale, the Buyer should conduct standard intellectual property rights ownership diligence. For example, if the item has been designed by a third party, the Seller should be able to provide a contract showing that the intellectual rights have transferred from the designer to the Seller. If such contracts cannot be provided, the Buyer may wish the Seller to obtain confirmatory assignations in respect of any assets.
More information
Whatever the type of intellectual property you own, or may acquire, it is important it is properly protected. Whether that is through statutory provisions given in relation to Coats of Arms, or through a registered design with the IPO: protection ensures that the intellectual property stays are a valuable asset for you to use for many years to come.
Brodies has extensive expertise advising on intellectual property and compliance issues relating to the creation, design and purchase of assets incorporating copyright, design rights, and trade marks. If you would like to discuss how we can assist, please get in touch.
Contributors
Partner
Senior Solicitor
