Practical Uses of Registered Designs
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To celebrate Tartan Day, which happens every year on the anniversary of the Declaration of Arbroath (6th of April), our Edinburgh team has decided to delve into the complex rules of tartan registration.
Registering a tartan
Tartans can make highly meaningful statements about one’s identity, history and values, and you might find as a result that a tartan is an asset worth protecting, whether you are an individual, an association or even a business.
Tartan registration: the substantial criteria
To be registered, a tartan must fulfil a series of requirements. Firstly, it must follow the definition of a tartan as set out in section 2 of The Scottish Register of Tartans Act (the Act). That is, a tartan “is a design which is capable of being woven consisting of two or more alternating-coloured stripes which combine vertically and horizontally to form a repeated chequered pattern.”
The new tartan must be a new design, unique to the Scottish Register of Tartans (the Register); it cannot be too similar to an existing registered tartan. In the official guidance, this notion is explained as meaning that the tartan must use different colours, in different proportions and order to those registered. The following changes are considered irrelevant: for instance, changing the size of the pattern but keeping the same colours and geometry; or changing the shades of colour (e.g. pale to dark).[1]
To ensure that a design is unique, applicants are advised to search the Register before submitting their application. On the Register, they can find existing tartans and compare them with their own.[2]
Specific conditions also apply to the choice of the tartan name.[3] Among others, the name, as the tartan design, must be unique and not similar to that of a registered tartan.[4] The applicant must also show a personal association with the proposed tartan name that is sufficient and substantial. Tartan names cannot be used to promote political campaigns or ideologies. Importantly, a tartan cannot use the name of anything covered by a registered trade mark or any other type of intellectual property rights owned by an individual or group without their express and written permission.
The application: formal requirements
The conditions regarding the application to the registration of a tartan are set out in section 6 of the Act.
All applications must be forwarded to the Keeper of the Scottish Register of Tartans. Any person may apply so long as they can certify that they have the right to authorise the Keeper to register the tartan. The process can be done either online, by creating a free user account with the Register, or in writing using the relevant application form.[1] The application file must contain the following elements:
- a pictorial representation of the tartan;
- a description of its colours, threat count and “sett” (pattern);
- the name of the tartan and the justification of the applicant’s association with the name (connection, relationship or interest);
- a registration fee of £70 (exempt from VAT).
The examination
The Keeper is solely responsible for assessing the validity of a tartan application. The examination process can take up to four weeks.
The Keeper may refuse the application for any of the following: the requirements in section 6 are not met; the design is not a tartan; the tartan is the same or too similar to a tartan already registered; the applicant’s association with the name is insufficient or insubstantial; the name of the tartan is undesirable.
In case of refusal, the Keeper must explain in writing the reasons for the refusal. The applicant may request reconsideration, for a fee, within 2 months of receiving the refusal notification. No further appeal of the decision is available after this stage.
Conclusion
Even though the process of registering a tartan seems straightforward, the importance of preparatory work should not be underestimated, especially when it comes to ensuring you have the right to use a specific pattern and name. It is also important to keep in mind from the beginning the limitations of the protection afforded by tartan registration and the alternatives of IP law.
Read Part 2 Here - The interactions of tartan registration with IP law
Author: Alix de La Motte-Broöns
Further advice
For further advice, please contact the trade marks team at Hindles.
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[1]For more guidance, see: The Scottish Register of Tartans - sufficiently different
[2] See the search tools: The Scottish Register of Tartans - Search ; The Scottish Register of Tartans - Comparison tool
[3] See detailed guidance: The Scottish Register of Tartans - Tartan name
[4] See The Scottish Register of Tartans Act, Section 6 (8): “No application may be made to register a tartan with a name which is the same as the name of a tartan in respect of which an entry in the Register already exists.”
[5] For detailed guidance, see: The Scottish Register of Tartans - Guidance on application process