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Wednesday, 13 June 2012

St Kilda tug-of-love gets serious

When a certain Blogmeister suggested that this Kat prepare a post on the ST KILDA trade mark, she immediately thought of the inner Melbourne suburb with Luna Park and a certain football team and got peckish at the thought of Acland Street cake shops. In a whirlwind geography lesson, she has now learnt that there is more than one place called St Kilda in the world.

The "other", non-Australian and arguably the original St Kilda is an isolated archipelago 40 miles into the North Atlantic Ocean. It has a very small population: the only permanent residents are defence personnel, although a variety of conservation workers, volunteers and scientists visit during summer. The archipelago is owned by the National Trust for Scotland (NTS) and it became a World Heritage Site in 1986 (No 387).

As part of its marketing campaign, in May 2009 the local Western Isles Council made a Community Trade Mark application for ST KILDA (No 008283871) in Classes 9, 16, 35, 39, 41, 43. The trade mark was accepted and duly published in June 2009.

NTS opposed the registration of the trade mark in September 2009 on the ground that it had stronger and prior unregistered rights in ST KILDA. NTS's opposition was rejected by the OHIM Opposition Division on December 2010 and by the OHIM Board of Appeal on 26 March 2012. This Kat has been unable to get her paws on either decision, but understands that this may have been because NTS had never sought to take out a trade mark in the past to protect its interests. This Kat has now learnt that NTS has further appealed to this decision to the General Court of the European Union.

A spokeswoman for NTS is quoted as stating: 'The trust has appealed against this decision [by OHIM] to the European Court of First Instance. Since St Kilda is owned and cared for by the NTS it seems logical that any trade mark would be too [Merpel wonders how many good arguments that open with the words "It seems logical" have ever actually been accepted by the General Court in the absence of specific references to provisions of the Community Trade Mark Regulation and Court of Justice case law]. The trust is also concerned that this decision could have the potential to set a precedent in relation to the many other iconic places in our care, which are important to all Scots, meaning that individuals or bodies who do not own the properties involved would have the exclusive rights to commercially exploit that name. Given that the trust is a charity, this would be far from ideal'.

Despite the continuing legal action, the Western Isle Council intends to progress with its plans to develop the brand. A spokesman for the Western Isle Council is quoted as saying: 'The St Kilda name and story generates resonance and interest at an international level. The Comhairle’s ownership of the trade marks presents an opportunity to maximise the quality and consistency of the branding and messaging associated with St Kilda to a worldwide audience, for the benefit of the Outer Hebrides'.

The IPKat recalls with amusement the days when place names couldn't be registered as trade marks in the UK: even if they were 100% distinctive in fact, they were 0% distinctive in law. He'd like to know, though, if there was a real St Kilda. Any details, readers?

6 comments:

Mark said...

We have a mug in our office on which is printed a facsimile of the objects clause of the Memorandum of Association of the National Trust for Scotland as drafted in 1931. No mention is made of any power to register trade marks. The NTS acquired the land in the will of the Marquis of Bute in the 1950s - it would be interesting to know if he also gifted any goodwill in the name St Kilda.

When I visited St Kilda in the 1990s, there was one NTS warden and about 30 soldiers protecting an early warning station.

Hector MacQueen said...

There never was a St Kilda. The archipelago is known as Hirte to the Gaelic-speaking people of the Western Isles. That name may mean "death", and a possible explanation is that Hirte was seen as the gateway to the next life. A well at the landing place on the main island is Tobar Childa in Gaelic, which turns out to be the Gaelic and Norse words for a well. Lots of wells in the Western Isles are holy and linked to a saint, e.g. Tobermory in Mull is the well of St Mary. So those who knew no Norse assumed that there must have been a St Childa, the "ch" here being pronounced as in "loch". Source for all this W J Watson's authoritative "Celtic Placenames of Scotland" (1926) pp 97-8.

Michael G said...

I've found a copy of the decisions on the OHIM website if you want to send you a copy, or me to provide a brief summary?

On a brief scan of the Appeal Board decision, it appears that the Board did not consider that the pre-existing non-registered rights were of more than mere local significance, and the opposition therefore failed.

Graeme Fearon said...

I've always understood "Kilda" was the result of a mishearing, misspelling or even misunderstanding of "Hirta" (the name of the largest island in the group) and that the "Saint" bit was a further piece of confusion added by later cartographers. But there are any number of competing theories, mainly based on Norse derivations - skilde ("shields") or "sunt kelda" ("fresh wells") seem plausible.

Jeremy said...

Michael G: if you can post a link, it would be great.

As for a brief summary, I'd like to publish one on the MARQUES Class 46 weblog, to which this blog will point its readers in tomorrow's Friday Fantasies. Any chance?

Michael G said...

https://www.dropbox.com/s/cfztziqr9x933iq/I_OP_0002406110_0.pdf

Here's a link to the initial decision also.

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