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“Made in Britain”: the pitfalls of patriotic marketing claims

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Karen Millen recently launched its ‘Tailored in London range of locally customised clothes which are available for six weeks from its flagship Knightsbridge store. Karen Millen joins Mulberry, Paul Smith, Jack Wills and others in linking its brand to British design and craftsmanship. The recession, a strong and growing reputation of the British fashion industry and a number of campaigns calling for transparency about where and how clothes are made have all conspired to make ‘fashion patriotism’ a potentially appealing marketing ploy. However, retailers beware. Any such claims must be accurate and lawful and getting this right is not always straightforward.

Terms like “made in Britain”, “manufactured in the UK” and “produce of Cornwall” are not and cannot be registered in isolation as trade marks. The UK IP Office makes clear a mark which states the geographic origin of goods or services is purely descriptive. This means all businesses are free (and in certain territories and business sectors legally required) to identify where their goods come from, provided the information supplied is accurate and not misleading. Brand identities which are “British” therefore need to look at imagery or wording used in combination with other elements if these are to be effectively developed, registered and protected. “Young Brits”, “Fabulously British” and “Made in Britain” combined with addition branding are all examples of successfully registered trade marks.

Indications of source such as “made in Britain” or “tailored in London” do not have be in any particular form (for example, a national flag or the name of the country) provided the location indicated is accurate. Crucially such indication does not guarantee a certain quality in the product. This is different from an “appellation of origin” such as Champagne or Parma ham, where a particular region is recognised as guaranteeing a minimum quality in certain types of goods.

So far, so simple. However, clothing manufacturing requires many stages of production, making it harder to determine how to label garments without falling foul of the law. In the EU, the country of origin for a product is the country where “the last substantial process or operation” takes place. Determining where this takes place is highly technical. Generally it is linked to whether the process causes the product to be reclassified under EU tax rules but there are certain processes in the manufacture of textiles which are expressly excluded, so clothing manufacturers or retailers need to take expert advice when labelling their products. Further, a process must be “economically justified” to qualify, to avoid unnecessary procedures adding nothing to the nature or value of a product undertaken purely to claim it is made in a particular location.

The penalties for misleading labelling can be severe. International trade treaties authorise customs and taxation authorities to seize any products inappropriately labelled. In the UK, regulatory bodies such as Trading Standards and the Advertising Standards Authority (“ASA”) ensure claims made by manufacturers and retailers about their products are not misleading. For example, the ASA held the strapline “best of British Shirtmaking” gave the misleading impression the shirts were manufactured in Britain, even though the words do not expressly state this. An adverse finding from the ASA or Trading Standards may mean goods must be withdrawn or relabelled and in severe cases may lead to a fine.

Brands that are proud of their British roots and want to incorporate this into their brand must carefully describe the origin of products to meet regulatory requirements. Inaccurate labelling can be an embarrassing and expensive mistake. Retailers should only market their brands on the basis of where they come from if they are confident such claims can be supported.

Published on Wednesday 08 October by Editorial Assistant

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