Meghan Markle’s Megxit Marks

The former Duke and Duchess of Sussex are atypical of their Millennial peers, who would, on average, have switched jobs over 4.7 more times and changed career over two times more than each of them at the same age. However, perhaps those traits are now emerging as Harry and Meghan close out the last of their official engagements and, as former Air Force Squadron Leader and Actor respectively, move from full-time working Royals to soon-to-be financially independent of the Royal Family.

As a number of commentators have suggested, it appears as though the desire for change had been some time in the making, with branding and websites being prepared a number of months prior to announcing their decision – see for ‘The Official Website of the Duke and Duchess of Sussex’. These preparations also include carefully-crafted trade mark (TM) applications which seek protection for a wide range of goods and services. However, after spending a considerable sum on the development of their brand (perhaps not a King’s ransom), we were informed last week that their TM applications have been officially withdrawn and that they no longer retain any intention of using ‘Sussex Royal’ or the term ‘Royal’ as part of their new brand. This sudden development may have left a large number of other TM applicants, who no doubt hoped to benefit from brand Sussex and applied for the same mark in various countries around the world, wondering what to do with their applications (filed following Harry and Meghan’s) now that the Sussex Royal mark has been shelved.

So, what lessons are there for the rest of us (including business who may be creating a brand or re-branding) from the actions of Harry and Meghan?

1. Make sure the brand is available

It is always advisable to conduct background searches to make sure that the brand is available and:

a.  Hasn’t been used by others who may have a better claim, if they have developed a reputation in the mark. In some countries, including Australia (and the UK), the first person to use the mark will be the “true” owner. Other countries apply a “first-to-register” test, so that even if someone has used the mark, failure to register could mean loss of rights – which is particularly important in Asia and when dealing with Chinese suppliers.

b.  Isn’t similar to prior-registered marks which will prevent registration.

The marks must also not be prohibited or contrary to law. For instance, the marks “ANZAC” and “Australian Defence Force” are protected, and similar marks – or even acronyms such as ADF – cannot be registered.

2. Ensure that you are entitled to use all elements of the trade mark

If someone creates branding for you, then you should ensure that they assign the intellectual property (IP) rights to you in writing, including copyright in logos, otherwise you might have paid for the work but not own the IP rights.
From a Megxit perspective, the ongoing use of the word ‘Royal’ has been contentious and ultimately not approved by the Queen. Buckingham Palace have confirmed that Prince Harry and Meghan Markle will no longer use the title ‘Royal Highness’. Whilst there is no law in Australia specifically prohibiting the use of the term Royal, that is not the case in all Commonwealth states. Countries which have adopted the Paris Convention for trade marks also agree not to accept or invalidate trade marks adopted without consent or which are an ‘imitation from a heraldic point of view’. So not owning all elements of the brand or not having approval to register can be difficult to overcome.

3. Plan ahead

The minimum time for registration of a trade mark in Australia is 7½ months from the date of an application. However, if the application is ultimately accepted and registered, protection will apply from the application date.
In some cases, it may be important to keep in mind the lead time when applying for a new mark.
In other cases, particularly for new marks, it may be important to file before announcing your plans. That could be more critical if you are considering filing in countries that have a first-to-apply requirement for registration.

4. Keep up to date

As soon as they are filed, trade marks are accessible on a publically available database.
Whilst most business won’t have the desire or need to be trawling through those records, they can be used to see what others are doing. For instance, a key competitor could have filed an application for a new brand, or similarly for new products which they haven’t previously offered. An overseas competitor could also file an application in Australia.
Keeping track could mean it is possible to gain some early insight into what others might be planning to do in the market.

5. Match trade marks with domains

The domain is said to be “The Official Website of the Duke and Duchess of Sussex’. Registering the corresponding TM (i.e. ‘Sussex Royal’) would make it easier to shut down infringers, which is becoming an increasingly important consideration in modern commerce.

Some well-known search engines and social media sites are far more slow to act (or won’t) where the trade mark doesn’t correspond directly with the infringed domain/website. So registering a trademark which matches your domain (or vice versa) has become an increasingly important consideration.

In the meantime, no doubt many of us will be keenly observing how Harry and Meghan’s brand develops independently of their royal ties in the coming days.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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