Wednesday, June 1, 2011

Can County Hassle TV Show Over Use of Seal?

click to see gruesome details
Dear Rich: A local government watchdog group put on a cable-access TV program where they used as their logo a spotlight shining on the seal of that government (Union County, NJ). On July 1, 2010 Union County submitted an application for a trademark on their seal and soon thereafter (9/17/10) the county counsel for Union County wrote a letter to the local cable channel telling them to stop using the Union County seal on the program since a trademark was pending. The letter is here. This is now the subject of a lawsuit described here. The question: can a government even trademark their seal? First of all, you failed to mention that the Union County seal is the only government seal in the U.S. that depicts a woman being shot. We thought it was some kind of misogynistic take on the Revolutionary War but it turns out that it's based on a real event -- the killing of Hannah Caldwell, a mother and homemaker from Union. We like the native-art illustration and wonder why the County isn't pursuing copyright infringement claims as well!
Right, you had a question. As much as the Dear Rich Staff supports the right of New Jersey county officials to hassle public access TV shows, we think the matter is moot (as the lawyers like to say) because the USPTO killed the county's trademark application last week. We have to agree with the trademark examiner who rejected the trademark application on October 18, 2010. She wrote:
Registration is refused because the applied-for mark consists of an insignia of a U.S. municipality. Trademark Act Section 2(b), 15 U.S.C. §1052(b); see TMEP §1204. Trademark Act Section 2(b) bars registration of marks that include the flag, coat of arms, or other insignia of the United States, any state or municipality, or any foreign nation. TMEP §1204.
You can read the complete rejection here. The County had six months to respond. We guess their tickler system malfunctioned because last week the trademark application was officially pronounced as abandoned. Here's the notice of abandonment. That's $325  in taxpayer money (not to mention county counsel expenses) down the drain! And in any case, even if the County has a protectible but unregistrable trademark, the TV show use is permitted under First Amendment principles.