They’ve finally taken the plunge and decided to go it alone, they’re just about to launch the brilliant business plan that’s going to set them up for life and then, out of the blue, granny puts her oar in and everything goes pear-shaped.

Just a month ago, we wrote about how Harry and Meghan were set to launch their Sussex Royal brand. There would be trade mark registrations for various goods and services including clothing, stationery, magazines, cards, fund-raising services and social care services. This trade mark protection would extend to much of the world. Branding gurus were predicting great things, as in tremendous wealth in the form of “royalty” streams (pun intended).

But then granny gets involved. Her Majesty basically decided that whatever the new brand is going to be, it’s not going to contain the word “royal”, which isn’t great because the name Sussex doesn’t exactly scream success.

This is, of course, what we think happened: things were presented to the public rather differently. A spokesman for the royal family was quoted in the Telegraph as follows: “As the Duke and Duchess of Sussex are stepping back as senior members of the Royal family and will work towards financial independence, use of the word ‘Royal’ in this context needed to be reviewed. Discussions are still ongoing.”

It’s probably safe to say that all the discussions have been long concluded. So, can the queen in fact prevent the young couple from using the word “royal”? Well, leaving aside the general consequences of defying the queen (Tower of London or, worse still, vilification by the British tabloids), let’s consider this from a trade mark perspective.

The couple first filed an application to register the trade mark SUSSEX ROYAL in the UK. By all accounts, a number of parties have threatened to oppose this application and have sought extensions of the opposition term, so there could be multiple problems obtaining registration. But there’s also the “protected emblems” section of the UK Trade Marks Act.

Section 4(1)(d) of the UK legislation provides that a trade mark that “consists of or contains words, letters or devices likely to lead persons to think that the applicant either has or recently has had Royal patronage or authorisation… shall not be registered unless it appears to the registrar that consent has been given by or on behalf of her Majesty or, as the case may be, the relevant member of the Royal family.” Given that consent has clearly not been given, this section obviously has the potential to be problematic.

Incidentally, it’s worth noting that provisions like this are not uncommon in trade mark law. The South African Trade Marks Act, 1993, for example, prohibits the registration of “a mark which contains any word, letter or device indicating State patronage” (section 10(9)), as well as registration of the coats of arms, seals and flags of foreign countries (section 10(8)). In addition, the legislation prohibits the registration of trade marks that would be likely to lead to deception or confusion.

Insofar as trade mark protection beyond the UK is concerned, Harry and Meghan have filed an International Registration that covers the European Union, the Unites States, Australia and Canada. But this International Registration is based on the UK application. So, a failure in the UK has consequences for registration elsewhere. The couple have, however, announced that they will withdraw their trade mark applications and not make any use of the word “Royal”. This is despite their comment that they were of the view that the Queen did not have a monopoly over the word.

So, right now things are not looking too good on the Sussex Royal trade mark front. We’ve said it before and we’ll say it again – irrespective of who you are, when it comes to any proposed usage or registration of a trade mark you need to get professional advice. And do ask granny if it’s OK!

Gaelyn Scott Executive Head of IP [email protected] +27 83 632 1445