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November 20, 2006
Calling all IP lawyers
When the Royal Canadian Legion went after Pierre Bourque last year for displaying the poppy on his website, they told him that "we have to protect this image or lose its use as a symbol of Remembrance." Every lawyer I came across backed them up: "Sorry dude, but the Legion had no choice but to protect its trademark."
"It's a protected emblem," IP lawyer Rod McDonald told the Montreal Gazette at the time. "Whether or not somebody is using it to remember veterans is irrelevant."
Lawyers are awesome. They act as if the law was imposed on us, in one crazy fell swoop, by the overlords whose Petrie dish we're now floundering around in. "Common sense?" one can almost see them saying. "Get the hell out of my office!" Rod McDonald would have us believe that it's totally normal and acceptable — indeed necessary — for the Legion to attack those who use the poppy for its stated purpose with the same ferocity as it would someone who used it to sell, say, lottery tickets, or beer mugs.
Well, what am I saying? Of course only the Legion itself is allowed to use the poppy to sell lottery tickets and beer mugs (and bumper stickers, cigarette lighters, wallets, ashtrays, golf balls, etc.). When I ignite my dying cigarette with a poppy-branded lighter, I'm promoting Remembrance; when Pierre Bourque displayed the poppy as "the most sincere sign of respect to the vets who fought and died for us," he weakened Remembrance. I'm sure it would all make perfect sense if only I'd gone to law school.
The point was made at the time that the Royal British Legion encourages people to download and display the poppy wherever they like, but it's not just that. The RBL's attitude is totally different across the board. On the white peacenik poppies, for instance:
Canadian Legion: "The legion cannot condone it, and we cannot accept any attempt to use this poppy without authority or approval." And: "The unfortunate decision by these individuals, or organization, to use the national Day of Remembrance as a focus for a fundraising project of promotion of an ideal is completely inappropriate and unacceptable."
British Legion: "What you wear is a matter of choice, the Legion doesn't have a problem whether you wear a red one or a white one, both or none at all. It is up to you."
So what gives? Is this not the RBL's trademark on its poppy? Are the RBL's lawyers pounding on the door in Pall Mall, demanding an end to this wanton permissiveness?
Furthermore, I saw the poppy on several well-read blogs this year. Why go after Pierre Bourque last year and not (just for instance) Kate McMillan this year? Has the Legion given up, thus surrendering Remembrance Day to these horrible people who want to honour the memories of Canada's fallen soldiers? Or did common sense somehow sneak past security?
My indignance knows no bounds, I realize, but these are honest questions. I'm interested in some honest answers.
Posted by Chris Selley at November 20, 2006 11:18 PM
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Comments
So what gives?
One assumes, as you say, that common sense pulled some weird Splinter Cell-type juju on the lawyers - but you can never be sure. Anyways, with respect to the differences between the Canadian and British Legion approaches, there's a couple of things to note: one, on my (limited) understanding of British trade-mark law, the ambit of a mark is much more narrow than under Canadian (and US) law - you basically need to be using the mark on the exact same type of good in order to infringe on the registered mark, and the British Legion's list of goods and services is much more narrow than the Canadian list; second, the Canadian Legion's rights extend far beyond a conventional trade-mark: under the Trade-marks Act they have a virtual monopoly on the use of the mark in any context, which is a much broader power than is accorded a standard registered trade-mark. If you're interested, I have a short article on my site which traces some of this - just click on "articles" in the upper right-hand corner at my place.
Posted by: Bob Tarantino at November 21, 2006 09:05 AM