Conservative MPs are systematically ripping off Green Party branding in their communications to voters – a new low for a party that is now clearly ashamed to be seen for what it is, writes Tom Scott.
What would be your first thought if you received a leaflet like one of those shown above from a political representative or candidate?
Well, if you had previously received anything from the Green Party, you might well imagine that this too was from the Greens. Not just because of the supposedly ‘green’ messaging, but because the leaflet uses colours almost identical to those used by the Green Party, very similar fonts and the same distinctively angled and highlighted headers.
Look more closely, however – unless you have sharp eyesight you might need a magnifying glass – and you would discover, in tiny print, the information that this leaflet has been produced for a Conservative politician by the Conservative Party.
As someone who has worked on Green Party communications for several years, it’s glaringly obvious to me that a deliberate effort has been made to mimic Green Party branding. And the fact that such leaflets have been delivered in constituencies all over the country indicate that this is no one-off aberration.
In a few cases the intent appears to be to actually persuade people to vote Green in the hope that this will damage Labour’s chances at local elections, to the benefit of Conservative candidates. As Twitter user Dawn Aquarius points out, that seems to have been the aim in North Tyneside ahead of elections there in May 2022.
In this case, the deceptive leaflet carried no mention of the Conservative Party even in the small print, only of “NTCF” (which stands for North Tyneside Conservative Federation, not that voters would have been aware of this).
But much more often, Green Party styling is being used for two reasons: firstly, to obscure the fact that the Tory politicians who are using this material to solicit votes represent a party whose own brand has become thoroughly toxic after 12 years of corruption, misgovernment and environmental degradation. And secondly, to suggest to voters that Conservative politicians embody the same sort of environmental principles as those of the Green Party – something that could not be further from the truth.
Here, for example, is Anthony Mangnall, MP for Totnes and South Devon. Mr Mangnall’s claim to be standing up for the local environment is treated with derision by many of his constituents. His voting record shows that he has generally voted against measures to prevent climate change and last year he voted against an amendment to the Environment Bill that aimed to eliminate the harm caused by the discharge of untreated sewage into rivers.
And here’s Jeremy Hunt dressing himself in Green Party colours to suggest that he is a champion of clean rivers and a staunch opponent of fracking (both hot issues in his constituency).
Voters in South West Surrey who checked these claims against Hunt’s parliamentary voting record might have been surprised to find that, until recently, their MP has strongly supported the expansion of fracking. Indeed, he has neglected to remove evidence of such support from his website, on which he writes: “Planning decisions on shale exploration applications remain disappointingly slow, which is why the announcement of a range of measures to help speed up these decisions is welcome.”
Hunt has also voted fairly consistently against measures to address other sources of greenhouse gas emissions and abstained on the amendment to stop sewage discharges that Anthony Mangnall voted against.
My Cornwall Green Party colleague Paul Clark (who designs our leaflets in Cornwall) has been tracking the Conservative Party’s use of branding very similar to that of the Green Party for quite a while, and brought this to the attention of Reform Political Advertising, a campaign calling for regulation to prevent lies in electoral advertising. As this campaign points out, if the Conservative Party were a manufacturer of cat food it would be in clear breach of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code):
“Let’s say that Whiskas stuck the Felix cat into their advertising. CAP Code rule 3.36 states: ‘Marketing communications must not create confusion between the marketer/advertiser and its competitors or between the marketer and the competitor’s product, trademark, trade name or other distinguishing mark and that of a competitor.’”
If the Conservative Party were selling products other than discredited politicians, the ‘green’ claims made in these leaflets would also be likely to attract the attention of the Competition and Markets Authority (CMA), whose Green Claims Code is aimed at stopping advertisers from making misleading environmental claims.
As the CMA notes: “More people than ever are concerned about the environmental impact of the products and services that they buy. We know businesses want to be honest with their customers about their green credentials, but it may not always be clear how to do this.”
Whether or not the Conservative Party wishes to be honest with its ‘customers’ about its green credentials is highly questionable; in fact its misappropriation of Green Party branding suggests the exact opposite.
Complaints about some of these leaflets have been made to the Electoral Commission. Its response, however, has been that it is unable to take action on such deceptive practice:
“As the Electoral Commission does not have a regulatory role in relation to the content of campaign material, we advise those with concerns or complaints about the content of printed or online campaign material to contact the political party or candidate who published it.”
To be fair to the Electoral Commission, this is not really its fault. The fact is, there is almost nothing in law to stop lies or deliberate deception in political advertising. It is also worth noting that the Elections Bill passed last year has greatly weakened the Commission’s independence.
Are there any laws that might be used to stop the Conservative Party misleading voters in this way? One possibility might be the law around “passing off” – in other words, deceitfully misrepresenting one organisation as another.
Breaches of the law in this area are not defined in statute but by case law, and as far as I can discover there has been no similar case involving a political party brought to an English court. Passing off involves one organisation exploiting the goodwill established by another and expressed through identifying features, including elements of its branding – not just its name and logo, but also characteristic styling, colours and shapes. As Harper James, specialists in IP law put it:
“The misrepresentation may be an express statement or may be implied from the defendant’s use of the same or similar distinguishing marks in respect of their goods or services which are also used by the claimant. The misrepresentation must have led (or be likely to lead) to the confusion, deceit and misleading of the public into believing its goods and services belong to the claimant.”
It seems to me that this is precisely what the Conservative Party has been doing by mimicking Green Party branding in its leaflets. The problem is, this law has hitherto been applied only to commercial companies and it’s unclear if or how it may apply to political parties.
One person who might be able to shed light on this is the government’s Solicitor General, Michael Tomlinson MP, pictured below delivering deceptively styled leaflets alongside Angela Richardson, Conservative MP for Guildford, in September 2022.
As it happens, Mr Tomlinson is a member of a parliamentary committee that focuses on intellectual property rights in the context of Brexit. The committee has so far failed to publish any of its deliberations, and it is not known whether these have included discussion of the legality of using another party’s branding as a means of disguising the nature and identity of the Conservative Party.
As Mr Tomlinson is no doubt aware, a key bit of case law in establishing what constitutes passing off is the so-called ‘Jif Lemon Case’. This was brought as the result of a manufacturer of lemon juice, which sold its product in a lemon-shaped bottle under the Jif brand, suing another company that entered the market with a very similarly shaped bottle but a different name (RealLemon). The case went all the way to the House of Lords, which eventually ruled in favour of the claimant.
One of the Law Lords observed: “A housewife presented with a display of these products in close juxtaposition would be likely to pick up . . . the [RealLemon] product in the belief that what she was buying was the respondents’ Jif lemon juice.”
In the case of the Conservative Party’s deceptively ‘green’ leaflets, it’s even worse. An unwary voter might well see a candidate’s name on a leaflet looking just like a Green Party leaflet and conclude that this person would stand up for their local environment in the same way as a Green Party representative would do. They might even put a cross next to that candidate’s name in a voting booth on election day.
This would be the equivalent of buying a bottle you thought contained lemon juice when it actually contained raw sewage.
