I hope you have all purchased your t-shirts with the government insignia of your choice adorning the chest portion. (I have my own shirt on order, but I won’t say what parodied emblem I ordered because this blog isn’t about that sort of thing, political discussions and the like). This blog is about far more interesting (but no less controversial) stuff like whether the government has the power to restrict certain expression that involves the use by one party of a third-party’s trademark. The owner of a Zazzle.com merchant webpage, a website where most of the insignia-bearing items are sold, has sued the Justice Department over a take-down notices that Justice sent to McCall. The claim is that Justice’s actions violate First Amendment rights because the attempt to stop the use of the DHS and NSA official seals is abridging free speech rights, namely the right to parody government logos (yes Virginia, parody is a form of criticism). One house-keeping, tone-setting note: this blog post is going to introduce the idea of using trademarks in parodies and why this particular kind of use can be protected as free expression. 

As you may remember from the previous post, we left off with the rumination on whether the government could restrict all uses of government insignia, whether for commercial or political purposes. Some agencies appear to allow some use of their insignia to be used on t-shirts and other items. NASA is one notable example, and this fact is evidenced by all the NASA-related insignia you find on websites and in stores like Target. Other governmental bodies (like the State of Nebraska) seem to limit most commercial and political uses of the state seal or any deceptively similar images. The rationale behind such restrictions (at least from the standpoint of the government) is that commercial use of the insignia is likely to confuse consumers in the marketplace as to the affiliation between a governmental body and the maker of the t-shirts. 

Image courtesy of CafePress (in case the NSA is watching...)
Maybe it’s all the news hitting the wires but I seem to be in the mood to blog about trademark issues involving the government to some degree. The last post was about individuals’ attempts to obtain trademarks on words that were motivated by some act of the government. Today’s topic is all about the reverse state of affairs: governments obtaining trademarks for government purposes.

Corporations are not the only zealous defenders of intellectual property rights. Governments diligently protect their trademarks too! Wait a second, you might say. Governments get their own trademarks? I thought governments were in the business of granting trademarks to other people, not acquiring their own. After all, what interest does the government have in designating themselves as the source of particular legislation, regulation, and policies? Well, there might be claims that the government can make regarding affiliation or sponsorship between an official government agency and a person that is using an official government seal on a t-shirt or the like. More on that later. First, lets look at if anyone can register official-looking trademarks.