In the latest copyright row to make the headlines, Marks and Spencer has removed one of its t-shirts from sale after London pub chain The Craft Beer Co. accused it of “ripping off” its trademark name.
But there are doubts that the retailer – which has removed the t-shirt from sale almost immediately so it can “investigate further” – had done anything wrong in the first place. After all, there’s no such thing as an original idea – or so the saying goes.
So did the retailer act too soon and what was The Craft Beer Co. really hoping to achieve?
Beer vs t-shirt: what’s the story?
Owners of the Clerkenwell-based pub business were first alerted to the M&S product when a customer mentioned it to a member of bar staff earlier in the week.
It featured the chain’s name as part of a graphic on the front and back of the £16 t-shirt and was described online as having “the St Michael Brewery-themed graphics on the back and chest” which “add a distinctive theme”.
Friends and business partners Martin Hayes and Peter Slezak immediately tweeted M&S, asking: “What’s the idea with these T-shirts!?
“Can we expect a royalties cheque in the post. Surely one iconic British institution shouldn’t be ripping off another….!!”
Hey @marksandspencer what’s the idea with these T shirts!?
Can we expect a royalties cheque in the post!?
Surely one Iconic British Institution shouldn’t be ripping off another…!!? 😃 pic.twitter.com/LYjZ337Wnq
— The Craft Beer Co. (@thecraftbeerco) April 12, 2023
M&S responded to the tweet, offering to get the beers in and saying it “didn’t mean to cause any ‘bitter-ness’”.
Hey @thecraftbeerco, we didn’t mean to cause any ‘bitter-ness’ so have removed the tee from sale so we can investigate. Can we chat about it over a (craft) beer @TheBearPub_CBC later? On us of course!
— M&S (@marksandspencer) April 13, 2023
More officially, a M&S spokesman said “We take intellectual property very seriously and, while the t-shirt was designed in good faith, we’ve taken the decision to remove the product from sale so we can investigate further.”
“I’m not angry about it, but it is a little annoying,” Hayes told the BBC, confirming that The Craft Beer Co is not planning to sue.
“I’ve got a lot of respect for M&S. It’s an iconic British business and I think somebody’s just made a bit of a boo boo really, but I’m sure it will be sorted out.”
Was M&S playing it too safe?
It’s unusual for a retailer to react so quickly to accusations of copyright theft, but should M&S have bowed to pressure so quickly?
It’s likely that the retailer is erring on the side of caution following previous well-documented legal battles with supermarket rival Aldi when it argued that Cuthbert the Caterpillar cake infringed the M&S Colin the Caterpillar trademark.
The two companies eventually reached a settlement last year, but it was a time-consuming and costly process, which attracted a significant amount of consumer attention. As the litigious party, M&S were left looking like the bad guy – and fighting a small independent company such as The Craft Beer Co. over one t-shirt could have a similar reputational effect, regardless of the legal status of the claim.
According to IMD Corporate partner Olexandr Kyrychenko, the name ‘Craft Beer Co.’ has not actually been registered as a trademark with the UK Intellectual Property Office (IPO), which means a court would look at the imagery and design of the logos themselves.
“Quite simply, while both [logos] contain the words Craft Beer Co the two are quite different and it would be difficult to argue that the two could be confused with one another,” he said.
“In addition, unless the company also sells t-shirts, a claim of infringement of any registered IPR is likely to be an uphill battle.”
Kyrychenko said that while The Craft Beer Co. could consider an action for ‘passing off, it would need to establish that it’s name was recognisable enough to carry ‘goodwill’ with consumers, that M&S using it would be ‘likely to cause confusion’ and that damage had been caused to the business itself (either reputationally or financially).
With regards to the third point, he added that it was “quite improbable that the company will be able to establish that it has suffered damages, notwithstanding the rather archaic reference to ‘proper blokes’ on the t-shirt”.
“Mr Hayes’ reluctance to take legal action may well be wise as the publicity, if anything, is likely to increase footfall.”