18 December 2005

Trade Marks: The Last Best Place

My US colleague Toni Tease of Billings, Montana has a fascinating story in the December issue of her newsletter Intellections entitled "The Saga of the Last Best Place". It is very short and well worth reading.

I first learned of the tale in the summer from my fellow blogger Martin Schwimmer before I knew of Toni's interest. The story seemed a bit far fetched and I had assumed that the journalist had picked up the wrong end of the stick. I emailed a link to an article about the case in The Billings Gazette to Toni because I thought it might amuse her. She replied that the substance of the report was accurate and indicated that she knew a great deal about the case.

I have not yet had the pleasure of visiting Montana but everything that I have heard of the state is appealing. Part of that appeal is personal in that one of my dearest friends from both St Andrews and UCLA served in both houses of the state legislature and actually led the Democrats for a while in one of those chambers, but I also incline towards small, rural communities in this increasingly urbanized world. I may be very badly informed but I get the impression that there are still remnants of the Jeffersonian ideal in places like Montana.

Because of that bias, part of me is pleased that the residents of Montana have kept this symbol of their heritage. I am not sure that they would have lost their illustrious heritage merely because someone monopolizes the sign for hotels, estate agency or mail order but I can well understand their objection. I live a few kilometres from Haworth where Anne, Emily and Charlotte Bronte grew up and I bridle at the vulgarization of the connection with three of the greatest novelists in our language by some of the local traders.

Having said that, the way in which David Lipson's trade mark application was defeated seems a bit arbitrary. Some - and not necessarily those on the right - would call it downright expropriation. It is a very long time since I studied the US federal constitution but I seem to remember something in the 5th amendment about a right not to be deprived of property without due process of law or to have private property taken for public use without just compensation. Of course, I write this on the day that the president admits to ordering wire taps within the USA without statutory authority so it may be that the Bill of Rights are not what they were when I was a student.

I have given some thought as to what would happen here in a similar situation and I think that there would have been several grounds of objection under art 7 (1) of the Community Trade Mark Regulation (and the equivalent provisions in national trade mark statutes). I also wonder how on earth a sign based on a byword for Montana could possibly have become distinctive. Community and national trade mark laws provide processes for invalidation of marks that should never have been registered in the first place so missing the deadline would not have mattered very much.

On the other hand, had Mr Lipson registered the "Last Best Place" as a domain name it might have been a different story again. The New Zealand government was unable to recover from a Seattle company in D2002-0754 New Zealand v Virtual Countries Inc for very much same the reasons that Toni mentions in her article. New Zealand is also a large, remote mountainous place with a tiny population like Montana. One can't help feeling sorry for the Kiwis and wish they had the clout that Montana enjoyed in the US federal senate.

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