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Ser69
Article Date01-09-2009
Record TYPEVeteran
Article TOPIC 
Article TitleOf Poppies
Article ContentOf PoppiesA minor kafuffle has erupted in the blogosphere over the use of poppies. The précis: Bourque used the image of a poppy on his website; the Royal Canadian Legion contacted him and asked him to remove the image as it was their registered trade-mark and he was using it without permission. Outrage, perhaps predictably, followed. Colby Cosh gravely intoned that ""I won't pay for or wear [a poppy] ever again. And neither should you"". Other esteemed members of the blogging fraternity have weighed in on the matter. Somebody is now tracking the blogburst on the issue. Which leads me to this:It's not the Legion's fault.
Blame the gods of intellectual property law. Blame the Trade-marks Act. Blame the government responsible for updating (or, er, not) the Trade-marks Act. Blame the Minister of Industry. Blame the Canadian Intellectual Property Office. Blame whoever you want, but not the Legion. They are only doing what the current trade-marks regime obliges them to do in order to protect their rights.
Trade-mark law is confusing and sometimes almost wilfully stupid. But it is what it is, and the Legion (and any other trade-mark owner) is forced to work with what they've got. Here's how this works: broadly speaking, a trade-mark identifies the source of a product or service. When you see a Coca-Cola logo on a bottle, you can be sure that, somewhere along the line, the Coca-Cola company had a hand in either making or approving the making of the contents of that bottle - you can be sure, in other words, that you're getting what you pay for. Same with any of a million other marks: Revlon, Disney, Bill's Flower Shop, whatever.
The government gives trade-mark owners the exclusive right to use their marks - meaning that the government will back up that monopoly of use with the full powers of the state to compel compliance. But in return for that, owners need to ""police"" the use of their marks - they cannot (and I repeat: cannot) allow unauthorized use of their marks or else they face the very real possibility of losing the exclusive rights to the mark entirely.
Let's take an example to make this a bit more cogent: the Legion has trade-marked the poppy image, with the goal being that whenever you see a poppy, you can rest assured that the Royal Canadian Legion is either involved in the use or has approved the use. You can imagine that the image of the poppy may have some residual value or ""goodwill"" associated with it, especially in the context of charitable endeavours: when people see the poppy on a brochure or advertisement, it may conjure associations with the Legion and the veterans it represents and may encourage people to donate. Fine.
Now, imagine someone (call them Company X) comes up with the bright idea of creating a bunch of military action figures that they want to sell - and let's say some of the action figures are depictions of historic Canadian military heroes (set aside for the moment any concerns about the personality rights of those heroes or their families). Company X decides that they're going to incorporate a poppy into the logo for this range of action figures. Maybe that's a winning sales strategy, maybe it's not - leave that aside. Regardless of whether Company X actually thought that the presence of the poppy would induce people into buying the figures (perhaps the potential customer thinks they are going to be contributing to Legion coffers by buying the figure) or whether someone at Company X just liked the aesthetic properties of the poppy, they have (potentially) violated the trade-mark rights of the Legion (it depends on what the scope of the Legion's trade-mark registration is).
The Legion finds out about the poppy on the Company X packages and seeks an injunction forcing them to desist in using the image. All the lawyers trundle off to court, the court looks at the Legion's registration, they look at the packaging, they look at what Company X is doing and... they tell Company X to bugger off and stop using the image. Unless. Imagine Company X is able to introduce evidence into court demonstrating that the image of the poppy is being used all over the place: on the internet, by other companies, by whomever. And the Legion is not only not authorizing such uses, but they're doing nothing to stop it. No threatening letters, no lawsuits, nothing. Suddenly, the judge looks over the rim of his or her glassed, raises his or her eyebrows at the Legion and tells them to bugger off. They're aren't policing their mark, and so the mark isn't an indicator of source anymore: when people see the mark all over the place (like, say, on websites), they can't be sure that it's the Legion standing behind the mark (whether this is factually correct, i.e., whether people actually think that the Legion is involved or not, is well-nigh irrelevant). The Legion loses, and Company X (and anyone else for that matter) can now use the poppy pretty much however they see fit.
Is that a good result? Maybe, maybe not. But that's how it works. So whenever you hear about Big Mean Corporation sending letters to Sweet Innocent Child about the use of a trade-mark on a website or a zine, or whatever, it's largely because Big Mean Corporation has no choice in the matter. If they don't send out those threatening letters, they run the substantial risk that someone, somewhere down the line, is going to use the fact that they didn't send out those letters against them - and then Big Mean Corporation is going to lose their trade-mark rights, which could be potentially disastrous.
And no, it doesn't matter whether the purportedly offending use is ""commercial"" or not. And no, the Legion is not asking for ""royalties"": they are saying that you can't use the mark without their permission. Different things.
Some other bugaboos which need dispensing: what about ""fair use""? That's copyright law, not trade-marks. There is no such exception in trade-mark law. And in Canada, the applicable doctrine is ""fair dealing"" - ""fair use"" is a US concept. And ""fair dealing"" and ""fair use"", vis-a-vis copyright law, are quite different anyways: under US copyright law you have much more leeway in using copyrighted materials than you do under Canadian copyright law. Regardless, though, the notion is entirely inapplicable to trade-marks: there are virtually no exceptions to trade-mark rights. Is that a good thing? Probably not, but, again, don't blame the Legion for that. Take it up with the government.
What about the British Legion, which is evidently encouraging people to download and display poppies? Slowly now: that's a different country. Maybe (in all likelihood) their trade-mark laws are different, and unauthorized use of the poppy wouldn't jeopardize their rights.
Thus concludes your tour.
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Eval SOURCE RELIABILITYF -unknown
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Source URL#http://letitbleed.blogs.com/blog/2005/11/of_poppies.html#
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