Ms Hazel Tunney:

I am a partner of Tomkins and Company, one of Ireland's oldest intellectual property firms. We specialise in advising on trademarks, design right, patents and, to a much lesser extent, copyright. Approximately 30 years ago my firm provided advice to the Government with respect to the protection of the harp as one of the national emblems of Ireland. I have been asked by Senator Mark Daly to provide my observations and suggestions from the perspective of trademark protection and the types of protection enjoyed by the national symbols of the State. I have considered whether such protections could be extrapolated to encompass, or in any way be considered analogous to, the types of protection which could be considered to protect the national anthem.

Irish and international trademark law gives State emblems and flags certain rights and protections. In Ireland this includes both the flags and national emblems of the nation and also those of other nations. Ireland has notified the World Intellectual Property Organization, WIPO, of a number of its official national symbols. These are a variety of different representations of the shamrock and the harp. The registration of such emblems with WIPO gives them certain protections both domestically and abroad. Under Irish law any trademark, being a right which gives exclusivity, which consists of or contains any State emblem of Ireland or anything which could be mistaken for such an emblem cannot be registered unless the consent of the Minister is secured. Any trademark which consists of or contains a representation of the national flag of the State, as defined in the Constitution, cannot be registered if it appears that the use of that trademark would be misleading or grossly offensive.

To summarise, third parties cannot secure trademark rights in anything which includes any State emblem or the national flag, or anything similar to them, unless permission is granted by the Minister and only then if the use of that mark would not be offensive or misleading. The Trade Marks Act prevents the unauthorised use of Irish national symbols, namely, the harp, the shamrock and the flag, or anything closely resembling them, in connection with any business if it is intended that use in this way would lead to the belief that the person or business was authorised by the State to use these symbols. The Act empowers the Minister to take injunctive action against any such deceiving use and sets out a variety of fines associated with it.

Ireland is party to the Paris Convention, a 19th century convention for the protection of intellectual property. Article 6ter of the convention allows for the protection of various emblems and insignia of the member states of the convention and of their flags. Most member states have notified WIPO of their national emblems and Ireland has notified it of the harp and shamrock. As a result, any trademark which consists of or contains the flag or notified emblems of any convention country or anything that imitates them cannot be registered as a trademark in this country or any other country without the authorisation of the competent authorities of the country in question.

If a certain sign is identical or similar to a state flag or a protected national emblem and its use is likely to mislead the public or suggest a link with the nation in question where no such link exists, the state in question is entitled to prevent use of the sign by seeking an injunction. To summarise, unauthorised, misleading or confusing use of certain state emblems or the flag of Ireland and those emblems and flags of other nations can be prevented from achieving registration and use of signs which are identical or similar to a flag or one of these emblems can be prevented if that use is misleading.

National emblems are signs that have symbolic meaning to a country. A national anthem is a song, usually officially adopted by a country, which acts as an expression of its national identity. In much the same manner as a national emblem, an anthem exemplifies or identifies a nation. As the harp and the shamrock represent Ireland, so too does "Amhrán na bhFiann". There is an argument that the Irish national anthem should be officially adopted, enshrined in legislation and afforded some form of protection similar to the protections granted to other national emblems of the State and the Irish flag. If the committee is minded to consider adopting some sort of national anthem Bill, my recommendation is that it look to the types of protections afforded to the flag, the harp and the shamrock for guidance. My initial thoughts are that the main attraction of such a Bill would be to officially adopt and enshrine in legislation what the national anthem is, its musical notation and its various translations. The beauty of introducing a measure as a result of a consultation such as this is that we could also incorporate different translations such as Irish Sign Language and any other translation that is deemed appropriate.

As the Minister of State and Dr. O'Dell indicated, such a Bill could be non-prescriptive in nature. It could delineate between acceptable uses of the national anthem and less acceptable or unacceptable uses. Looking to the types of protections granted to the flag, harp and shamrock could be useful. The existing protections for the harp, the flag and the shamrock include the requirement, in some circumstances, to seek the consent of the Minister to register them as trademarks, the ability of the State to take action to prevent unauthorised use if it will create serious confusion or suggest links where no such links exist or if its use will be grossly offensive or misleading.

I appreciate that concerns could arise to the effect that such a Bill would be excessively prescriptive and determinative. However, when we consider matters such as trademark law, much of the wording is subjective and general in nature. I appreciate that the use of terms such as "misleading", "confusing" and "grossly offensive" can be subjective but the use of such subjective language would ensure the Bill would avoid being excessively prescriptive because of the subjective nature of the words. Any such Bill could focus on using suggestive words such as "should" and "could", rather than prescriptive words such as "must" or "shall". This would assist in making the Bill less prohibitive and more guiding in nature.

My recommendation is that any proposed Bill, should the committee decide that legislation is the most appropriate way to proceed, incorporate provisions which provide a full, detailed definition of the national anthem and its various translations, contain general non-prescriptive statements that the national anthem should be reproduced, treated and performed with dignity and respect and not in a way which is misleading, confusing or grossly offensive. It could set out general provisions for seeking permission to use the national anthem in certain circumstances, such as those cited by Dr. O'Dell, in a commercial fashion, while making clear exemptions for non-commercial uses such as for charity, at the end of matches and so forth and, if deemed necessary, to provide for injunctive powers to prevent grossly offensive use or deceptive misuse of the national anthem.

I thank members for inviting me to today's proceedings. I will be pleased to answer any questions they may wish to pose.