Joined: 29 Jan 2010
|Posted: Mon May 19, 2014 10:38 am Post subject:
Unfortunately you have chosen two quite complicated areas of law! I am assuming that you want to print these designs on your cards. If you want to use actual tartan fabric or ribbon etc on the cards, see my comments below.
Tartans, including those which originate outside Scotland, can, providing they meet the eligibility criteria, be registered with the official Scottish Registrar under the provisions of the Scottish Register of Tartans Act 2008 although this of itself does not provide any additional protection from being copied, but the register can provide useful contact and other details concerning individual tartans.
The main protections arise from copyright in the design of the tartan as an artistic work, and from registered design right. Additionally some tartans have been registered as trade marks (for instance here). Each type of intellectual property provides protection in a different way. Copyright is probably the broadest and so I will try to cover that in some detail. While it is debatable that some traditional tartans qualify for copyright protection due to their age, a relatively recent court case called Abraham Moon v Thornber (Abraham Moon & Sons Ltd v Thornber & Ors  EWPCC 37) established that various documents (so-called 'ticket stamps') which detailed how a loom should be set up to produce a particular pattern of cloth were protected and so making a fabric to the same pattern would be copyright infringement. This decision also took into account the ruling in another famous case known as Designers Guild which concerned the design of a wallpaper pattern (and therefore not specifically relevant to your question). The main problem with copyright in tartan designs is knowing who might be the lawful owner of the right given that many traditional tartans are several hundred years old, but this is where the register may be of help. However if you bought some tartan fabric or ribbon etc from a licensed source then there would be no problem with you using that fabric on your cards. But to print a facsimile of a protected tartan on the card would generally need permission, and quite possibly a licence for which you would need to pay.
Registered design right (RDR) is intended to prevent items being made to the same design as the one which has been registered, and so printing a facsimile on a card of the design would not infringe the design right. And similar to copyright, using tartan fabric etc purchased from an authorised source would not infringe design right. There is also a European form of design right (known as Community Design Right (CDR)) which can also be used to protect unregistered designs. Design right only lasts for a comparatively short period (25 years for UK RDR subject to being renewed every 5 years, but only 3 years for unregistered CDR).
Registered trade marks which are tartans would be an issue if your use on cards was similar to goods or services for which the trade mark was registered, or there was serious risk of confusion amongst the buying public as to whether your products originated from the trade mark owner.
Coats of Arms.
Technically all true coats of arms are protected as artistic works because they are hand-drawn and painted on vellum by the heralds at the College of Arms, but more importantly they are protected by Royal Prerogative because each is granted by the Sovereign. There are medieval laws about the misuse of coats of arms, which are enforced by something called the Court of Chivalry. Despite sounding a bit medieval itself, it still exists and does occasionally issue decisions over the use of arms. If a coat of arms you are interested in is one granted by the College of Arms, then no-one other than the grantee may use it, except in very special circumstances (think of the 'By royal appointment' use of Royal ciphers by firms who have been issued Letters Patent authorising such use). As I'm sure you are aware there is nothing to stop anyone creating their own version of a coat of arms so long as it does not copy an existing grant of arms, and in such cases, although the Royal Prerogative would not apply, copyright would protect the artistic work. And in certain cases they may be registered as trade marks (eg here).
So to be on the safe side if you find a tartan you wish to use, you should see if it has been registered in the Scottish Register and enquire about licensing its use if you want to print it, or if you just want to use a piece of fabric or ribbon, find an authorised supplier. You can't use officially granted coats of arms, but you can make up your own so long as it doesn't copy an existing coat. If you are in any doubt, I would advise you to contact the College of Arms on this, although I'm pretty sure they would be quite sniffy about the idea of making up your own!
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007