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7 Aug 2017

Trust and Trademarks

Three mountain peaks against blue sky, with fluffy clouds.
As a charity, the National Trust for Scotland conserves and protects the places in its care. Director of Customer & Cause, Mark Bishop, explains why the Trust has been forced to resort to the use of trademarks as part of its protective measures.

I know that many people have been upset by recent social media and news reports about the Trust’s dealings with the Hilltrek company.

The comments we’ve received focus on two main issues: firstly, the nature of the letter our legal representatives sent to Hilltrek, and; secondly, the notion that it is possible to trademark place-names, even really well-known ones, in Scotland.

As for the first issue, I will be speaking directly to Hilltrek about the letter but, in retrospect, although it was a standard legal document with standard wording, it was in the circumstances of this particular company too harsh in tone.

We have no desire to harm Hilltrek, but there were good reasons why we made contact with them, even if the letter’s tone was off.

This brings me to the second issue. Many people have been surprised that it is both possible and necessary to trademark a place-name like Glencoe. It was a complete surprise to us too, and we found out the hard way.

A few years ago, an attempt was made to trademark ‘St Kilda’ by a third party without our knowledge or consent, despite us owning and caring for the property. Although we eventually came to a resolution over this, the trademark authorities confirmed that the bid had been both legal and permissible.

We had appealed this decision. However, because the Trust had never previously moved to formally protect our property names, there was a clear opening to some third parties to use the names for their own purposes, even if they have no connection to the Trust, our properties or Scotland.

So what, you may ask. It’s not just about money, though it takes a lot to conserve places like Glencoe and to maintain public access through infrastructure like footpaths. The problem with third parties trademarking the names of our properties leads to all sorts of reputational issues. If third parties selling dubious products are associated with our properties, this still reflects on us even if they have no links to us or these places whatsoever. And, yes, this may lead to problems with any future merchandise we sell to raise funds to pay for the properties’ upkeep.

We don’t like this one little bit but this is the world we have to live in. We have been given no choice - very much against our will, we have had to take defensive measures and begin registering trademarks for some of the properties we own. We recognise that these are iconic Scottish locations and names worthy of protection.

We have never had any intention of undermining established and new businesses trading locally to our registered properties, and we have gone out of our way to ensure they can continue trading without interruption or cost. We have kept that promise. What we have done, after taking legal advice, is to contact a number of companies using trademarked names which are not local.

In the case of Glencoe, we have, for example, contacted businesses based in England and France over the use of the name.

Our only desire is to protect the properties in our care and stop them being exploited in ways which do not accord with our charitable purposes.

The intention in contacting Hilltrek had been to open up negotiation to establish if the company had legal prior trading rights. Clearly the tone of the standard letter sent to them was disproportionate and we very much regret that.

As I have said, we will be entering into a dialogue with Hilltrek with the aim of finding a mutually agreeable solution.

However, in the longer term, unless there is an agreement at national level by the various bodies responsible for legislation which ensures place-names like Glencoe and St Kilda can’t be trademarked, we have to deal with the consequences and play by the rules of the game as they are. Whether we like it or not.