6 July 2022TrademarksSarah Speight

Captain Tom charity’s use of trademarks in question

Third-party ownership of IP rights is among the issues facing the management of a £38.9m COVID-19 fundraiser.

UK charities regulator, the Charity Commission, has escalated an inquiry into the Captain Tom Foundation over newly identified concerns about the charity’s governance—including the use of trademarks associated with the charity which may have generated “significant profit” for a private company run by the late WWII veteran’s family.

The foundation, a grant-making charity, was registered in the UK in June 2020 after the much-publicised fundraising efforts of the late Captain Sir Tom Moore during the COVID-19 pandemic, through which he raised £38.9 million for NHS charities by doing laps of his garden using his walking frame in the run-up to his 100th birthday.

But by March 2021, the month after Captain Sir Tom passed away from COVID-19, the charities regulator had opened a compliance case in which it intervened in the charity’s employment of his daughter Hannah Ingram-Moore, a former trustee of the charity.

This new inquiry, launched on June 16, expands the Commission’s investigations to look into the conduct of trustees in connection with a private limited company, Club Nook, controlled by Ingram-Moore and her husband Colin Ingram-Moore.

A ‘failure to consider’ IP

Among the Commission’s concerns are that the foundation’s trustees failed to consider IP and trademark issues when the charity was established.

This, says the Commission, provided Club Nook the opportunity to register trademark variations of the name ‘Captain Tom’ without objection from the charity, and may have generated “significant” profit for the company and losses for the charity.

In response to the launch of the inquiry, the Ingram-Moore family said in a statement that Club Nook applied for "various trademarks in April 2020, a month before the Captain Tom Foundation was established”.

Stephen Jones, chair of trustees at the Captain Tom Foundation, said that the regulator was aware of the arrangements for handling intellectual rights when the charity was founded, and said the foundation “will of course work closely with the Commission in its inquiry relating to intellectual property management”.

“I note that the trustees confirmed with the Commission during the process of registration that the ‘image rights and intellectual property rights of the name were held within a private family trust’, and the commission were aware that this was always intended to be the case,” he added.

Helen Stephenson, CEO of the Charity Commission, said in a press release:We do not take any decision to open an inquiry lightly, but in this case our concerns have mounted. We consider it in the public interest to examine them through a formal investigation, which gives us access to the full range of our protective and enforcement powers.”

Trademark-related sales

While the Charity Commission declined to comment further, trademark attorneys told WIPR that Club Nook’s ownership of trademark rights raises questions.

Peter Brownlow, partner at Bird & Bird, says that “the issue appears quite involved”.

“The matter is likely to boil down to whether the use of the trademarks owned by the private company misrepresent to the public that sales made under them would benefit the charity,” he told WIPR.

And Marks and Clerk partner Kirsten Gilbert says she finds it “interesting” that the Charity Commission has picked an issue with the trademarks as part of the inquiry.

“It seems that Club Nook filed and registered numerous trademarks for Captain Sir Tom’s name in relation to products as diverse as digital recording media, lapel badges and cocktails,” she says.

She adds that the range of goods and services covered, such as ‘arranging charitable fundraising activities’, is such that it is difficult to see how the charity would look to exploit the ‘Captain Tom’ name on a commercial fundraising basis without seeking permission from Club Nook.

“Club Nook is not a charitable organisation and the concern from the Commission is that this situation could be exploited to leave the foundation to choose between paying a licence fee that could potentially be set at a commercial rate, or not using the ‘Captain Tom’ name in fundraising, which would be a significant blow to the foundation’s ability to raise funds,” she points out.

This potential conflict of interest could have been avoided if the trademarks were filed for and registered in the name of the foundation, she adds.

“Had the foundation been under independent control at the time the trademarks were applied for, it may have been able to object to the applications.”

Court of public opinion

It might have been entirely sensible to protect the ‘Captain Tom’ name with a trademark, in a bid to prevent misuse by others. But having a third-party involved complicates matters.

Emmy Hunt, trademark attorney at European IP firm Potter Clarkson, says while it would be more usual to see the rights being retained by the charity itself, “we don’t know what the rationale was for this approach and it may well emerge that there were sound reasons or professional advice behind the decision.”

Hunt adds: “It’s always worth remembering that the court of public opinion and media attention does have significant sway and there are some parallels between this case and others, where the optics of owning rights serves to cause public embarrassment.

“For example, the Duke and Duchess of Sussex’s move to protect ‘Sussex Royal’ was perceived by some as a commercial exploit rather than to control or prevent misuse of the mark. That ultimately ended with the applications being withdrawn.”

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