The Free Postcode Lottery is one of the internet’s success stories of the last few years. Set up from scratch seven years ago, by founder Chris Holbrook, the site dishes out daily cash prizes of £800+. Over the years the site has paid out in excess of £500,000 and created hundreds of winners. However, things are about to change!
A recent blog post on the site explains that The People’s Postcode Lottery are suing Chris and The Free Postcode Lottery for trademark infringement and “passing off”. Surprisingly, this is something we know a little about. Back in the day we used to have a site that advertised rubbery adult toys. The name of the site was derived from The Fast Show sketch “Ooh, Suits You”. However, a clothing retailer called Suits You took action against us. The result was a hefty pay out (at least it was hefty to us) and the site name changing.
Postcode Lottery Trademark
OK, that’s not quite the same heavyweight battle that’s ensuing between The PPL and The FPL. However, The FPL have opted for the same path – changing the name of their brand in response to possible legal action. So why do they have to change their name? Surely there’s an obvious difference between the two companies and their modus operandi? Actually, it’s not as simple as that.
When we posted this news on the Loquax Forum, one poster commented “as if anybody could trademark the phrase ‘postcode lottery'”. Well, they can and they have. The trademark “postcode lottery” was filed in March 2017. The mark was registered by Novamedia B.V. who run The People’s Postcode Lottery in The UK. Classes within that mark include “arranging games of chance and lotteries”. As I understand TM law, that means no one else can call their lottery a “postcode lottery”.
Unfortunately, that trademark isn’t good news for The FPL. In 2016, The FPL did try and trademark “Free Postcode Lottery” but for reasons unknown were unsuccessful in their attempts. Another free lottery site, My Free Postcode Lottery, which has since shut down, also tried to file a trademark but they withdrew their request. That request was withdrawn one week after Novamedia B.V. were successful getting “postcode lottery” trademarked.
Reading between the lines, this suggests that Novamedia B.V. (or The People’s Postcode Lottery) have got their intellectual property pretty much sewn up with trademarks – at least from March 2017. However, The FPL is seven years old and launched six years before the filing of trademark UK00003217171. This is possibly where the “passing off” element of the case comes in to play.
“Passing Off” is when a name isn’t trademarked, but has “built up sufficient goodwill attached to it to be protected by passing off laws”. Novamedia B.V. have been running charities in Europe and The UK since 1989 and no doubt will argue that they have sufficient goodwill to protect “postcode lottery” up to the time they’ve trademarked the name. The fact they’ve been able to trademark would also suggest that law agrees with that goodwill.
Reflecting back on when we faced trademark issues, there wasn’t much goodwill around. A rather well spoken London lawyer phoned us on a Friday evening. With delight in his voice he told us the news we were being sued and that a high court summons would be issued on Tuesday unless we sorted things out. I’m sure he had a great weekend, but mine and Kirsty’s was filled with panic, stress and anger. A couple of days of that was more than enough so avoiding court and more hassle is a sensible way out.
There’s Only Way To Settle This
Harry Hill might suggest fighting as the best way to settle this, but in this case he’d be wrong. Faced with the above, Chris is (in our view) doing the right thing by opting to change The FPL’s name. He has worked hard over the last seven years to establish what is arguably one of the best giveaway sites we’ve seen in the 20 years of Loquax. A name change, whilst annoying in the short term, shouldn’t effect the userbase or growth of the lottery and community. If anything, it’ll probably galvanise it further.
Not fighting also means he’s not wasting valuable time and resources on a court case. A case that would be expensive and with no guarantee of a win. Even if Chris did win then (I think this is correct) he’d still have to pay his costs. Whilst the arguments of The FPL is free, established, and it’s obviously not the same thing sound great – that trademark is a huge hurdle to climb over – regardless of the moral questions and big business v small business bullying questions the case raises. Hopefully the action Chris is taking is acceptable to The People’s Postcode Lottery and everyone can then move on.
Here’s To The Next 7 Years
Whatever the new name is we anticipate that The FPL will continue to grow from strength to strength. A new name should also allow Chris and his team to trademark their own brand, giving them a little protection over the many “me toos” that popped up (and popped down) based on their success.
We wish him well with the current situation, and also wish The FPL a happy seventh birthday. Here’s to many more, whatever the site is called.