Diversification of landed estates – a trade mark lawyer’s advice...
From the TV series Upstairs Downstairs in the 70’s and Brideshead Revisited in the 80’s to the more recent success of Downton Abbey, we clearly love to immerse ourselves in of the historic lives of the landed gentry.
But despite the destruction of many landed estates after the Second World War, many ancient families have adapted to the changing times, and have turned their estates into thriving enterprises, as have new owners of historic properties from the world of business and celebrities.
An early example of this diversification was by the Marquess of Bath at Longleat House, who opened the house to the public and created a safari park in the grounds. Many country estates do not just open the house and garden to the public, with tea and cake on the side, but have embraced the myriad opportunities, and engaged in a variety of initiatives to a secure the “family seat” for the future and make the property pay its way.
The custodians of the UK’s landed estates have diversified into a vast number of areas including:
- Knebworth’s Rock and Pop concerts
- Horse trials, Country and Game Fairs at Burghley, Badminton, and Blenheim
- Film sets, and TV productions (a TV series can generate more income than a film) like Castle Howard for the 1982 serialisation of Brideshead Revisited; and Highclere which has benefitted from the more recent cult following of Downton Abbey
- Garden centres, Estate Farm shops, and gift shops
- Wedding and corporate event venues;
- Licensed consumer products; notably food and drink such as the Prince of Wales’ Duchy Originals brand which is now run by Waitrose as Waitrose Duchy Organic
- Breweries and distilleries.
Perhaps the epitome of diversification is Goodwood: with its Glorious Goodwood race meeting; motorsports; golf courses; aerodrome; and event space and organisation.
In diversifying, these Estates have all created a brand, and like any other brand, they need to protect the goodwill and reputation that they have worked so hard to generate and ensure that the brand equity is not diluted by unscrupulous or opportunistic third parties.
It is important then to look at diversification as a branded business and take steps to protect the intellectual property rights in the brand.
Obviously, the first consideration is protecting the name when used in a business context. Whilst brand owners may be able to prevent third parties from ‘passing off’ their products or services as connected with the Estate, that would involve having to prove goodwill in the business conducted by reference to the name, and that use of the name by a third party was misleading the public as to the source of those goods or services.
The trading activities may be obvious but where there may be complex trusts and separate companies set up to conduct the various different businesses, the ownership of rights may not always be straightforward, and may involve a number of different people or entities.
Trade Mark Protection
These issues can be overcome by obtaining registered trade mark protection for the “brand equities”, including not just the name of the Estate but any sub-brands and logos, and many Estates have done exactly that. Possession of a registered trade mark enables the owners to protect against misuse of the name and brand much more easily and cost efficiently.
Protecting all the Activities – the Brand Plan
The housekeeper has always been a key character in the running of landed estates and the important task of housekeeping should also extend to a regular review of brand protection. Registered trade mark protection is granted for specific goods or services, and as an Estate branches out into new areas, it is important to ensure that the registered trade mark protection is similarly extended where necessary. Once you have a trade mark registered, you have a period of 5 years from the date of registration in which to use it in respect of the goods and services protected, whether it is for jam and biscuits, or golf courses and wedding venues. It is therefore worth thinking long term when deciding which goods and services to protect.
Trade marks are territorial in nature so you also have to think about your market. If services are being offered outside the UK, additional trade marks might be needed in other territories. Most of the likely countries of interest have “use” provisions so this should be taken into account when considering where to seek protection.
Keeping Good Records
Maintaining the archives is no doubt second nature to the keepers of landed estates, and again this important task should extend to protection of the brand.
The flip side of having 5 years in which to use a registered trade mark is that once 5 years have passed, the owners of registered trade marks may be required to prove that the mark has been used for the goods and services protected. If it has not been used, the protection may be lost for those goods and/or services. It is therefore good practice to ensure that proper records and examples of use of the trade marks are kept safely in case they are needed. Maintaining such records will also assist if it becomes necessary to establish the goodwill.
The great value of a registered trade mark is that it can last indefinitely provided it is used and renewed every 10 years.
Owning the broader IP rights
In addition to the name, the branding might make use of heraldic arms, or crests, and the rules of the College of Arms and/or the letters patent under which the arms were granted must be taken into account. If the estate has been acquired and separated from those entitled to bear the arms, this may also have a bearing on the branding which may be used.
If you are creating a new brand, and engaging a creative agency or independent consultant (who is not an employee of the Estate or Estate entity), to produce your branding, logos and other marketing materials, be sure to check that you own the underlying copyright in what they create. It is always advisable to have confirmation of this in writing (preferably in a signed contract). The same applies for anyone who creates materials for the brand such as artists who draw images of the house, those who write content for, and develop websites, and photographers.
Monitoring and Enforcement
Once you have protection in place, you also need to have effective monitoring and enforcement processes in place. You can sign up to a trade mark watching service, for example which will identify applications for the same or a similar name which might infringe your rights.
Like great houses and grounds, brands need to be cared for!