Everyone could be a winner in name game

St Anns Well Buxton
St Anns Well Buxton
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A SMALL businessman’s victory over who owns the rights to use the name of Buxton’s most famous asset has led to calls for a root and branch re-think of the way the town markets itself as a Spa town.

High Peak Borough Council have lost their fight to prevent Neil Scowcroft using the words “Buxton” and Buxton Spa” to brand his hand-made organic perfumes.

Neil Scowcroft

Neil Scowcroft

And their legal action against him over his use of the website address www.buxtonspa.co.uk was described by an independent expert with Nominet – the UK’s domain name regulator – as unfounded in a ruling made in his favour.

A separate action to oppose Neil’s registration in the UK of his business trade mark ‘Buxton Spa Aromatics’ has been discontinued by the Council.

Now Neil and his lawyer are calling on the business community to use the ruling and the Council’s climb-down on its trade mark registration opposition to open discussions with the Council and amongst themselves on how Buxton can best promote its Spa town status.

Durham Grigg, a specialist Intellectual Property & Commercial lawyer newly-resident and practicing in Buxton, who acted for Neil for no fee, says the Buxton Spa name should be used to help local businesses use their distinctive geographic location and possibly, their collectively distinguishable goods and services as a marketing tool.

This would be similar to how the French jealously guard their regional “appellation” names, such as Brie, Champagne and Roquefort and in England registered trade marks highlighting regional and traditional food to guarantee authenticity include ‘Kentish Ale’, ‘Exmore Blue’, ‘Orkney Beef’, ‘Traditional Cumberland Sausage’ and ‘Bakewell Pudding’.

“This would protect local jobs and boost trade,” said Mr Grigg. “We need to ask: should  ‘Buxton’ and  ‘Buxton Spa’ be marks which are registered perhaps as ‘Collective Marks’ or are otherwise recognised as a mark of geographical origin guaranteeing the quality of, for example, our unique Buxton Spa natural mineral waters, in such a way that no individual – whether Neil or the Council can claim to have an exclusive monopoly in our town name of Buxton or its historical and current status as England’s premier northern Spa town?

He added: “I am sure that we could find a way to ensure that our famous ‘Buxton’ and ‘Buxton Spa’ brand was both protected against misuse and, importantly, that everyone in our local town received a very direct and appropriate benefit from the use of our town’s name.

“Recently obtained documents from the UK Intellectual Property Office relating to the High Peak Borough Council’s applications to register the words ‘Buxton Spa’ so as to claim monopoly rights in a range of goods and services, raise questions which require answers as to why the applications were made, and whether certain evidence put forward to justify being granted the UK registrations is factually accurate.”

The Council has the same exclusive monopoly to use the word ‘Buxton’ and ‘Buxton Peak’ when it comes exploiting and selling our ‘natural mineral water’.

In evidence to the Nominet domain name dispute expert, the Council claimed that the ‘Buxton Spa’ brand has been used in relation to swimming pool services, baths services, massage services, solarium services, towels, bathing suits, bath robes, hotel and spa services, catering services, crèche services, restaurant services, natural mineral water, tourist centre services, museum services, information services, souvenir shop services, souvenirs, mechandise including lip balms, bubble bath, hand creams, soaps, candles and bath salts.

In evidence put to the UKIPO when applying for its ‘Buxton Spa’ trade mark, the Council asserted that it had and has the exclusive historical rights to extract and use our town’s famous natural mineral waters in association with the name ‘Buxton’.

Neil believes the Council should be challenged on that claim to use exclusively the town’s name, despite its claims that it does so for our benefit.

A key question which perhaps needs to be asked of any local government body, not just our Council, is at what point do they go from being supportive of local industry, businesses and individuals and being a local government using its assets wisely and sensibly, to an organisation competing in business with local individuals and businesses?

Mr Grigg suggests: “Local governments are not the best people to engage directly in business. They never have been and they never will be.”

Could water generate more cash?

Buxton could benefit by using its historic Spa town identity and famous natural mineral water assets to promote businesses if Nestle paid a fairer price for its use of the town’s famous water, said Mr Grigg.

In evidence submitted by the High Peak Borough Council to support its attempt to prevent Neil from using his ‘Buxton Spa’ domain name, figures relating to total sales of Nestle Waters UK Ltd from sales of its ‘Buxton®’ bottled mineral water’ were provided.

Total sales in 2010 were claimed to amount to £61,617,000. These sales figures, when considered in the light of a comment by High Peak Borough Councillor Caitlin Bisknell in a comment made to the Buxton Advertiser’s Post Bag earlier this year that the Council receives around £500,000 a year from the Buxton’s natural mineral waters, suggests that the royalty rate being received from sales of the town’s natural mineral waters, is less than 1% (around 0.81%.)

Mr Grigg said that a royalty or licensing fee of that magnitude for what seems to be exclusive rights to extract and sell the town’s natural mineral waters, seemed low. While each case needs to be considered on its merits, a royalty or licensing return of between three to four per cent on total sales would be more in keeping with a commercial endeavour of this nature involving not only the exclusive right to use the trade mark ‘Buxton’ but also to extract and own the natural mineral waters.

This income could be used via a trust for the future development of Buxton.

“If you go down Spring Gardens or go up on the Market you’ll see all the empty shops.,” said Neil.

“The Portas review showed there’s the community support there. Imagine if instead of £500,000, what the Council got every year was more like a 3-5%. We’d be talking about £2 -3 million each year.”

Mr Grigg added: “If all that went into regeneration, this town would be buzzing.”

Council’s response

Godfrey Claff, High Peak Council’s executive councillor for regeneration, told the Advertiser:

“We’ll continue to protect our Buxton and Buxton Spa trademarks in the interests of the High Peak taxpayer. The trademarks were registered to enable the effective marketing of products to be sold in our Pavilion Gardens Gift Shop.

“The sale of such products supports the Pavilion Gardens business in generating profits that help protect public services and restrain council tax in challenging economic conditions. In turn, the management of a vibrant retail offer in the Pavilion Gardens is critical to attracting visitors who then support the town centre’s shops, restaurants, cafes and pubs.

“The registration of our trademarks also anticipated the major retail opportunities that will arise from the £35m redevelopment of The Crescent as the UK’s first genuine spa hotel in more than a century – a development that’s now underway and in which we have been heavily involved as a key landowner.

“Our commitment to strengthening the local economy has also been underlined by our support of the Town Team’s emerging Portas bid.

“In closing, I should stress that our discussions with Mr Scowcroft have been amicable throughout, and I wish him every success with his business”.