Since the 1970s, fans of the Scotland national football team have become known as the “Tartan Army.” There’s also a company called Tartan Army Limited, which was originally owned by a Glasgow businessman, Ian Adie, which owns the EU and UK trademarks for “Tartan Army.” Adie sold the business in 2006 and the company’s new owners took ownership of the trademarks.
Enter the Famous Tartan Army Magazine, published by a company called Alba Football Fans Limited. According to the magazine’s website, the publication is “dedicated to the Scottish National Football Team and its supporters” to “capture the bonhomie, the banter, the humour and most of all the passion of supporting our beloved national football team.”
In 2015, Tartan Army Limited sued the Famous Tartan Army Magazine for trademark infringement, claiming £300,000 in damages from its use of the term in products and services, including travel services for fans. Tartan Army claimed that magazine readers would connect their company with the magazine’s publication.
In a ruling by the Court of Session in Edinburgh last week, principal commercial judge Lord Glennie found that a likelihood of confusion had not been established by Tartan Army. The judge concluded: “The evidence does not suggest that anyone becoming aware of the magazine would associate it with the pursuer or any of the pursuer’s products bearing the words ‘Tartan Army’. Nor does it seem to me to be likely that there would be any such confusion.”
Lord Glennie emphasized the important differentiator of the use of the word “famous” in the magazine’s title. He wrote: “Long before the application for the Trade Marks, the tartan army was famous, in the sense that it had a nationwide, perhaps worldwide, reputation. To that extent the addition of the word “Famous” before Tartan Army is not unimportant. It is not an insignificant detail which the average purchaser or customer would not notice. In my judgment the defender’s Magazine title cannot be said to be identical with the pursuer’s Trade Mark.”
And so, with the court’s conclusion that the trademark infringement claim “fails,” the Famous Tartan Army Magazine continues to publish under that name.