Outcome of CAFFUK trademark attempt to suppress BAFF
The 4-year campaign to suppress BAFF by "Combined Armed Forces Federation UK" (CAFFUK / CAFF UK) pre-1975 leavers has finally been seen off, after a series of rulings in BAFF's favour.
This tedious saga is now at an end, but if any member wishes more information, please click the headings below.
"Combined Arms Federation UK" began their one-sided dispute in 2007 having been offered BAFF's cordial cooperation, and BAFF support (if they wanted) for their core campaign about a pre-1975 pensions grievance. BAFF had also offered to meet CAFFUK representatives to discuss cooperation.
BAFF didn't go public about the trademark dispute while it was in progress, and has only gone public now in view of, among other things, the other side's laborious efforts to avoid paying the legally-awarded costs.
Their website mentioned "a lot of legal activity, challenging a group whom we believe have 'trespassed' on our organisational name. This has been seen as an important challenge ..."
Combined Armed Forces Federation UK continued that "important challenge" for four years, almost certainly against professional legal advice.
Their representative made it clear throughout that the purpose of the CAFFUK trademark application was to prevent BAFF completely and permanently from operating. His actions even after losing the case and with no remaining avenues of appeal, along with the CAFFUK committee's refusal to take responsibility for the costs awarded against their representative, did succeed in causing real damage by demanding time and attention at a critical stage.
CAFFUK's campaign against BAFF was also a gift to opponents of the principle of representation for serving personnel.
Other obstructive efforts
Along with other obstructive efforts, CAFF UK asked their veteran members to campaign against a Private Member's Bill introduced by MPs, independently of BAFF, to promote the principle of representation for today's serving personnel.
The Bill's real title was the Armed Forces (Federation) Bill, but CAFFUK assured their members that it was the British Armed Forces Federation Bill.
Like most Private Members' Bills, it was never expected to pass into legislation, and had already expired at the end of the parliamentary session. But the CAFFUK website then announced, under the headline "NO MORE BAFF", that:
"We have ... had to deal with some challenges "on the left flank" from the British Armed Forces Federation (BAFF) who have been trying to establish a parallel organisation through parliamentary pressure. When it was pointed out that CAFF UK was already in existence and that they were breaching our Copyright - they withdrew their Member's Bill very rapidly."
Clearly that was far from accurate, and it appeared after the facts had been explained to the CAFF UK correspondent.
Ironically, CAFF UK's lobbying efforts against the already-expired Bill helped to put BAFF in touch for the first time with the Bill's sponsor Kevan Jones MP. Mr Jones proved to be a notable supporter in Parliament, and later as a Defence Minister and Shadow Defence Minister, of the principle of responsible representation for armed forces personnel.
Unwarranted demands and threats
Our opposition to the CAFFUK trademark application was in response to unwarranted threats of infringement proceedings against BAFF, which were 'festively' sent to BAFF at Christmas 2007 and published on two CAFFUK public websites:
"The Title, Letterhead, Logo and Trade Mark of The Combined Armed Forces Federation UK (CAFF UK) is registered for copyright protection with the UK Intellectual Property Office.
"You are required by The Combined Armed Forces Federation UK to immediately remove the title, letterhead, logo and trade mark of BAFF (2006) Ltd from the entire public domain including its website and Company House registration.
"Any failure to comply with the above requirement and inform those to whom it may concern immediately, will be regarded as a continued act of piracy and an injunction will be applied for to prevent any further breach of copyright. A claim for costs and exemplary damages will also be made."
But CAFFUK hadn't really "registered" anything with the UK Intellectual Property Office.
We found that a CAFFUK representative had applied for trademark (not copyright) registration of its "Union Jack and crown" logo, and the design had been published by the Intellectual Property Office (IPO) for possible objection.
Equally unfounded were the claims to "copyright". Even if a trademark really had been registered, trademark registration is not copyright protection.
In any case, the descriptive term "armed forces federation" was never capable of copyright protection.
Not only that, the phrase was not created by CAFFUK, and already existed, in the public domain, years before the formation of CAFFUK: see 'Armed Forces Federation' - Half a century 1966-2006.
The CAFFUK representative asserted in his later appeal that the trademark application had been "scrutinised for approval" and "meticulously scrutinised for acceptance" by "Counsel on behalf of the CAFF UK", at a cost of £500 (which hadn't been mentioned in his substantial cost claim in the original proceedings).
If true, Counsel might have spotted the legal basics, such as the difference between trademark registration and copyright protection.
There was never any question of BAFF attempting to use its own genuinely registered trademark in a similar manner, even if it wanted to.
Indeed BAFF took steps to reassure CAFFUK, during the dispute, that it need have no concerns on that score.
BAFF's defensive course of action
BAFF decided to lodge a notice of "opposition" to the application, on specified "absolute grounds" under Trade Marks legislation. In other words, the "opposition" was based on what we argued were inherent problems with the trademark in terms of the legislation, rather than on any conflict with BAFF's own intellectual property rights.
The "opposition" notice set out three statutory grounds for refusing trademark registration, which were drafted by a barrister on the basis of a QC's advice, all generously instructed by our then solicitors at no cost to BAFF funds. As things turned out, our representative withdrew one ground at the first hearing, and our other two grounds succeeded: one would have been enough.
The "opposition" option was intentionally lower-key than other defensive courses of action which were considered at the time. We chose this option in the hope that it would be less confrontational, less troublesome and less costly for all concerned.
The published threats were fortunately taken off the CAFFUK public websites following a letter from our lawyers, but the threats themselves were not withdrawn.
We couldn't expect our target membership to know that the pseudo-legal claims and threats had no basis in actual law.
So the concern remained that if the trademark application was allowed to proceed unchallenged, CAFFUK were likely to resume in public the claims and threats which now continued in their correspondence...
Sure enough, CAFFUK's representative responded to our lawyers that BAFF had submitted its opposition
"on the total basis of false pretences which, as you will be aware, is an indictable offence amounting to deception..."
This example of CAFF UK "legal advice" failed to impress, and reinforced the view that the trademark application had to be opposed.
Their representative went on to issue another unwarranted threat of legal proceedings, demanding the withdrawal of BAFF's trade mark opposition:
"Any failure to do so by February 7th 2008 would lead to proceedings against BAFF (2006) Ltd for 'Deception by false pretences'..."
Ignoring the relevant regulations, the gentleman also called upon the IPO to reject our "opposition" out of hand, as
"nothing less than a 'last ditch' 'eleventh hour' attempt by BAFF (2006) Ltd to avoid an Injunction as detailed above based ... upon a false pretence."
Any mediation possibilities, he assured the IPO, had been exhausted.
Failure of CAFFUK trademark application and appeal
BAFF didn't withdraw its "opposition", so the IPO commenced its normal dispute procedures. Each side lodged two rounds of written evidence and submissions. Among other things, the CAFF UK representative submitted that the BAFF case was "vexatious with no reasonable prospect of success and based upon false pretences", and "grasping at straws".
After a hearing before an IPO hearings officer, the BAFF case was successful. The hearings officer issued a 19-page decision to refuse the CAFFUK trademark application on both grounds. BAFF was awarded a contribution towards its costs.
An unsuccessful attempt by the CAFFUK representative to postpone the whole process "for the foreseeable future", without either accepting the decision or going to the trouble of submitting an appeal, was eventually followed by an appeal against refusal. The costs order was suspended to await the outcome of the appeal.
After much further labour on submissions, correspondence and preparation, the appeal also failed on all counts after a second hearing the following year. Both grounds of "opposition" were again upheld, and BAFF was awarded another contribution towards its costs in the appeal. Both legally-enforceable contributions should then have been paid.
Responsibility for payment of costs
As an unincorporated association CAFFUK couldn't apply in its own name for trademark registration, but its nominee applicant repeatedly stressed that he was acting on its behalf and with its full authority.
The CAFFUK committee (which included the applicant) had instructed and funded the trademark application, and was aware of the dispute throughout. CAFFUK's "important challenge" was announced on its official website. The trademark-related demands and threats which initiated the dispute, including the threat to extract "costs and exemplary damages", were all in the name of 'Combined Armed Forces Federation UK'.
The appeal document (available to logged-in members) was on CAFFUK headed paper, was signed as "Secretary General The Combined Armed Forces Federation UK", and clearly stated that both application and appeal were on behalf of that association.
If the appeal succeeded, CAFFUK naturally stood to gain by recovery of costs from BAFF, as well as by trademark registration of their logo.
After the appeal failed, however, CAFFUK responded that the costs awarded against their declared official representative were no concern of theirs.
CAFF UK's failure to face responsibility added significantly to both sides' wasted time and trouble, as well as to their own side's costs, and to the retiree-generated setback to the campaign for sensible representative arrangements for current personnel.
For its part, although BAFF was reasonably confident of success and is constituted as a Company Limited by Guarantee, so that no BAFF individual could have been personally liable, BAFF had made arrangements to ensure that any costs awarded against it would be promptly met.
Eventual recovery of costs from trademark applicant
Having been ostensibly left to face the music, the CAFFUK representative announced that he wasn't paying the costs either. He claimed that he had identified a "fundamental flaw" in the UK Intellectual Property Office's procedures, but his argument showed a lack of understanding of the process, and hadn't been mentioned in his appeal. He hadn't sought a judicial review either, and the IPO confirmed that the trademark case was closed.
BAFF had no option but to request the awarded contributions towards its costs, but the nominee persisted with two attempts through the courts to block recovery of the debt. The last attempt has now failed at a final hearing, and the awarded costs have been recovered by normal enforcement action through authorised High Court Enforcement Officers, along with the additional court and enforcement costs.
Anyone involved in any future legal proceedings promoted by CAFF UK may want to be aware.
Thanks to the generosity of our lawyers at the time, BAFF funds incurred no legal expenditure which was not recovered from the other side, and no professional fees had to be recovered by us from the other side. We were represented at the three hearings by our Chairman. Two other members of our Executive Council also attended the final court hearing in Portsmouth.
1. The 'Combined Armed Forces Federation" trademark dispute is mentioned in a legal textbook: Intellectual Property Law Directions, Helen Norman, Oxford University Press, 2nd edition 2014. It refers to one of the two grounds on which BAFF successfully argued for refusal of the trademark application.
2. While the growing time and attention demanded by this saga did lead to real setbacks, it is worth adding that our volunteers' best efforts continued throughout the dispute. See for example BAFF in the news (2008-2010), which covers a period in the middle of the prolonged dispute.
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