Leicester law firm Spearing Waite is helping landscape gardener Andy Foster in his bid to challenge trade mark claims being made by Bradgate Park Trust, concerning the Old John monument in Bradgate Park.
Mr Foster, who runs Bradgate Landscaping from his home in nearby Cropston, was outraged after being told by the Trust that he has to pay £250 to become a corporate partner of Bradgate Park or stop using its imagery in his branding.
Mr Foster said: “I was nervous when I first received the letter from the Trust, but now I am determined to stand up to them. I am preparing to challenge the Trust’s trade marks. If I can cancel the trade marks altogether, that would solve the problem not just for me, but for all the other businesses affected too.
“This would be a last resort, but if the Trust won’t agree a fair and sensible solution in the near future, then I will have to do that. If I can cancel the trade marks, it will solve the problem for everybody.
“All I want is to keep my business name and logo, and to be treated with respect.”
John Buckby, a Chartered Trade Mark Attorney, and intellectual property solicitor at Spearing Waite, is helping Mr Foster with his case free of charge. He said:
“This case highlights the risk of making threats against businesses without a proper understanding of the law. Trade marks must be used commercially to remain valid. The whole point of trade marks is to identify and protect traders. If they are not used, they can be revoked.
“Surprisingly, in their recent public statements, the Trust admitted that they have not made any commercial use of the trade marks, but simply want to block other people from using them. This approach is not permitted under trade mark law. It means that Mr Foster, and anyone else, can apply to revoke the marks.
“We have written to the Trust, putting it on notice of Mr Foster’s intention to revoke its trade marks for ‘BRADGATE’ and for images of Old John.
“Mr Foster does not intend to challenge the Trust’s ‘BRADGATE PARK’ or ‘BRADGATE COUNTRY PARK’ trade marks. Whether or not these marks are vulnerable to revocation, he believes it is fair for the Trust to retain the exclusive rights in those names.
“The Trust’s other trade marks probably should not have been registered in the first place. Pictures of famous buildings like Old John cannot usually be registered as trade marks. They are commonly used by the public, and do not identify an individual trader as is required for a valid trade mark. Images of Old John will be perceived as a well-known Leicestershire landmark, not as a trade mark.
“As for the ‘BRADGATE’ name, it is sometimes possible to register the names of geographical locations as trade marks. However, that is not usually permitted if the name would be understood as a reference to the place itself, rather than to an individual trader.
“People and businesses in Leicestershire are likely to perceive the word ‘BRADGATE’ simply as a reference to the place itself, and not as the mark of a trader. Arguably, the name should have been excluded from registration as a trade mark, or limited to a very narrow range of defined goods only.
“Everyone in Leicestershire, including Mr Foster, is sympathetic to the work carried out by the Trust in maintaining Bradgate Park as an asset for the people of Leicestershire to enjoy. We all appreciate that the Trust needs to have sufficient funds to maintain the park.
“But when you use trade marks to demand payments from small businesses, it becomes a legal issue. Trade mark law is complex, but the rules are well-established. In this case, the rules do not support the Trust’s actions. It is a shame that the Trust did not take specialist legal advice before sending the letters, as it now risks losing the trade marks as a result of its threats.”