Crests or flags in branding can bring unheralded pitfalls

The old Airdrieonians badge. Picture: SNS
The old Airdrieonians badge. Picture: SNS
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Armorial bearings can only be granted to the virtuous, says Jamie Watt

The recent story that up to 20 Scottish football clubs faced having to abandon their existing club crests due to them falling foul of ancient heraldic laws caused either mirth or consternation – depending on whether people supported those teams or not.

However while fans love nothing more than getting one over on their rivals, the story cast some light on an unheralded (pun intended) area of the law, one which applies as much to other commercial organisations as it does to sports clubs.

Badges, shields, flags and other similar marks are regularly considered by organisations as devices around which to build identity and goodwill.

The Saltire, as well as being the national flag of Scotland and a key symbol (along with the lion rampant) of national identity, is regularly considered with respect to product or corporate branding, both within Scotland but in territories where there is an affinity with Scottish-sourced goods.

Within the UK, trade mark laws, in combination with international conventions, provide certain restrictions surrounding the use of national flags, royal insignia and armorial bearings. People often think if relevant trade mark registries have no issue with a proposed mark, then that is the end of the matter.

However, one also must consider the Court of the Lord Lyon, the heraldic authority for Scotland.

The principal administrative function of the Court relates to the granting of armorial bearings to such persons it considers to be virtuous and deserving. Any person who wishes to use an armorial bearing must petition the Court for a grant of arms, or for a matriculation showing the place within the family of those arms.

Those bearing arms, where their coat of arms is wrongfully used, may present a petition against the offender in the Court of the Lord Lyon. Further, they have the right to raise an action for damages. The Court of the Lord Lyon includes a procurator fiscal.Additionally, no bearer of arms may without the warrant of the Lord Lyon authorise others to bear those arms.

Where a person is found to have displayed or used arms without authority, the Lord Lyon may impose a fine, but perhaps more importantly, confiscate all of the articles upon which the arms appear.

What amounts to a coat of arms/ armorial bearing has yet to be definitively determined, but the present view appears to be that any device other than letters or numerals, displayed on a shield, lozenge, cartouche or rectangular banner or set upon a wreath, crest, coronet or chapeau amounts to an armorial bearing.

The position concerning the saltire and lion rampant is a particularly interesting one. By charter of novodamus, later ratified by parliament, Charles II granted arms concerning inter alia “the office of bearing our insignia within our said realm of Scotland”, these being “standards, coronets, pincels and other ensigns of war and battle of whatever shape or fashion or colour, as well of foot as of horse” to Charles Maitland.

As such, use of the lion rampant or St Andrew’s cross (saltire) can often impinge on the jurisdiction of the Court. Those that do not recognise this can often find themselves in difficult territory.

The prudent operator, when dealing with anything which might involve the lion rampant, the saltire, or any other armorial bearing, should take advice at an early stage. As for the prudent sports fan, they may just have to accept your players kissing a different badge in future.

• Jamie Watt is a Partner at Harper Macleod LLP

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