Do you see what I did there?
Trademarks on government insignia. The third and final installment where we discuss the all-important topic of whether government bodies can prevent citizens from using official government insignia on t-shirts and other novelty items. In the last post I left off with the question of whether the government should be allowed to prevent the use of official insignia by a person in the form of a parody. After all, if the government has an interest in preventing the general public from becoming confused as to the affiliation between a parodist and the government agency that this person is parodying, shouldn’t the government be allowed to bring down the hammer? 

Deeper questions on the extent of overlap between use of government symbols vs. use of commercial symbols are more easily answered by remembering that the dominant goal of trademark law is preventing consumer confusion as to source. In the private sector, if confusion about a trademark is likely to result in harm to the consumer from a counterfeit product, stopping others from using the trademark is hugely important. But in the private sector, a trademark owner does not have the unmitigated right to prevent all uses of their trademarks by others, particularly where no confusion is likely and there are greater interests at stake. These greater interests often originate in the interest of competition. Another greater interest is also found in freedom of expression. Trademark law knows these greater interests collectively as the “fair use” defense.

In the private sector, fair uses can arise in a number of ways including comparative advertising (Drink Coke Zero, it’s better than Dr. Pepper Ten), if another trademark is being used to describe a quality or feature of your product (ABC Co. Cran-Apple is a sweet tart of a taste), or even attaching an authentic trademark to a product that has been refurbished (applying the Top Flite trademark to golf balls used on a driving range, so long as the golf balls were originally made by Top Flite. Fair uses are not so much a “free pass” to use trademarks broadly however one chooses as they are a recognition regarding the realities of advertising and the marketplace. Trademarks grant monopolies over certain words and symbols, but if it is necessary to use someone else’s trademarks to keep consumers informed about the nature of a product, trademark law won’t deny a competitor that opportunity. Imagine if companies were forced to resort to using some kind of foreign lexicon to advertise their products?

What interests are at stake when the discussion shifts to the public sector and the government’s attempt to stop others from using official symbols? Some of the main arguments seem to center around the government’s beliefs that any kind of use could result in mutilation or alteration of an official seal. Prohibiting this kind of use, I guess, is meant to preserve the official and esteemed nature of the underlying government office. Still another argument from the government is that unauthorized use of official symbols is an impersonation that is (I’m drawing inferences here) designed to prevent other government officials and members of the general public from being duped.

Okay, so the government is worried about preventing some crackpots from branding themselves as President or Vice President. I can see the rationale there. This is no different from a private-sector trademark owner’s interest in preventing an infringer from using a trademark on a counterfeit good. But what reasonable member of a viewing audience is going to think that a shirt with the NSA seal (and the tagline “The Only Part of the Government That Actually Listens”) was actually made by the NSA? Would it be any different from when an artist who used the name of a well-known company say, like here (Wal-Mart mark implicated in “Walocaust” and “Wal Qaeda” parody marks) or here (Pennsylvania law school student group spoofs signature Louis Vuitton monogram print on a poster promoting Fashion Law symposium, see picture at right). 

In all instances of parody, the interest to be protected is freedom of expression. As a society, we like to be entertained and what is more entertaining than having a laugh at a prominent company’s expense over a clever play on words? No harm, no foul. If private companies aren’t allowed to wield their trademarks like hegemons of the English language, why should a governmental body be allowed to do the same? An attempt by the government to insulate itself from criticism cannot be paraded around under the guise of trademark law, just like a company cannot shield itself from criticism by asserting its trademarks. Trademark rights can extend pretty far in preventing others from improperly using a mark, but they cannot be complete bars to any use. 

So our friend, the maker of the Anti-NSA t-shirts ought to proudly display his wares and sell them. As for his pre-emptive suit against the NSA, a prudent thing for the court to do would be to step back, take note of all interests at stake, and consider whether the government really should be allowed to create a new branch of trademark law.



12/11/2013 11:32am

Great blog post. Lots of information about trademarks and how government exempts itself from yet another law.


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