Passed off in the Royal Mile?

The not always straightforward business of flogging Scottish merchandise in Edinburgh's High Street was further complicated when Gold Brothers, leading traders in the field, were interdicted ad interim from commercial dealing in woollen scarves made to "Skye Isles" tartan designs on 2 July 2008.

It appears that a Mrs Rosemary Samios, who lives in Australia, claims to own the copyright in "Isle of Skye" tartan, having acquired it in 1992 from a Skye crofter called Angus MacLeod.  She has raised the action against Gold Brothers in the Court of Session and is seeking £150,000 in damages as well as the interim interdict now successfully obtained.  She runs a licensing business with her intellectual property, charging £12,000 per licence plus a 10% royalty on sales.  A raid on a Gold Brothers warehouse in Kirkcaldy had apparently revealed enough material to make 9,000 kilts with the tartan applied.  Gold Brothers were also accused of applying the tartan to material of inferior quality, and to a variety of objects such as rugs and hats as well as scarves and kilts, which they sold through subsidiary outlets trading as Heritage of Scotland, John Morrisons, Clans of Scotland and the Scottish Shop as well as online.

All this information is based on media reports, as the opinion of Lady Dorrian granting the interim interdict has not appeared on the Scottish Courts website at the time of writing.

The case illustrates the potential commercial significance of the Register of Tartans to be created under a Bill that completed Stage 1 of its legislative progress back on 19 June, which looks set to commence operations in the not too distant future.  The Register will be based, incidentally, in the National Archives rather than the Registers of Scotland.

It is interesting that Mrs Samios' claim is based on copyright (i.e. the premise is that the tartan is some identifiable person's artistic creation) rather than on, say, a registered design or trade mark, or on the common law of passing off.  Unless, as is often true with media reports of this kind of case, the reporters are simply getting into a muddle with the different forms of intellectual property protection.  Those who would like further illumination on the subject are recommended to consult MacQueen, Waelde and Laurie, Contemporary Intellectual Property: Law and Policy (Oxford University Press, 2007).  See also comment from the IP Kat under the heading "The 'bazaar' tale of 'tartan tat'".