Copy right and COAs

 
dschweitzer156
 
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dschweitzer156
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26 May 2015 16:21
 

I was asked the following questions based on 3.2 Trademark section

Many people ask why they cannot protect their arms in the United States under either the copyright or trademark laws.

It is possible to register one’s arms as a trademark under state or federal law. The problem here is that a registered trademark is valid only if it is actually used in one’s trade or profession. Most armigers do not intend to use their arms for that purpose. Moreover, the same problems concerning the extent to which a design must be altered to constitute a different design arise in the trademark area as well; a court adjudicating a case will not be likely to ask whether the marks are sufficiently differenced under the law of arms but whether a reasonable consumer, seeing the two emblazonments, is likely to confuse one with the other. Even if the arms are used in business, once they are registered as the trademark they are typically tied to the business. If the business is sold, the trademark usually goes to the new owner. Thus, if a business owner has registered his arms as the trademark of his company, and he dies and the company is bought out as part of the estate settlement, his children may find that they have no right to their hereditary arms.

1 - Do all or none or some countries have reciprocity agreements in recognizing C.o.A.s that have been issued outside of that countries jurisdiction?

2- The last paragraph sounds like it is saying that the transfer of business copyright would supercede and render ineligible the rights of Heraldic inheritance - which is kind of a big deal for most armigers.

 
Michael F. McCartney
 
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Michael F. McCartney
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26 May 2015 19:33
 

Re: question #2—the heraldic heirs wouldn’t be barred from using their father’s arms, merely barred from using the particular emblazonment (or a visually too-similar one) that was registered as a trademark.  Even using that emblazonment might be OK so long as not used in trade or in a way that might somehow damage the trademark holder.

 
Joseph McMillan
 
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Joseph McMillan
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26 May 2015 20:08
 

Michael F. McCartney;104367 wrote:

Re: question #2—the heraldic heirs wouldn’t be barred from using their father’s arms, merely barred from using the particular emblazonment (or a visually too-similar one) that was registered as a trademark. Even using that emblazonment might be OK so long as not used in trade or in a way that might somehow damage the trademark holder.


That kind of depends on the courts.  Try using any depiction of a little girl standing under an umbrella with a box of salt under her arm as a trademark and see how fast Morton’s has you in court.

 
Joseph McMillan
 
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Joseph McMillan
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26 May 2015 20:15
 

dschweitzer156;104364 wrote:

1 - Do all or none or some countries have reciprocity agreements in recognizing C.o.A.s that have been issued outside of that countries jurisdiction?


I don’t know of any agreements like this.  Under certain conditions, the Canadian Heraldic Authority will [register/record/recognize/fill in the verb] arms originating in other countries, but I’d be surprised if there are any agreements to this effect.  This would be problematic given the extent of duplication of old arms in different jurisdictions.  Even among the realms of which Elizabeth II is queen, there is not complete mutual recognition of grants issued by the several heraldic authorities.  The College of Arms doesn’t recognize grants by Lord Lyon to people in the overseas dominions (the College asserts that it enjoys an exclusive "imperial" jurisdiction) , and Lord Lyon doesn’t recognize Canadian grants (because Canada’s gender-neutral inheritance rules can lead the arms to be separated from the surname).

 
Kathy McClurg
 
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Kathy McClurg
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27 May 2015 21:38
 

Interestingly enough, the Lyon Court also claims all citizens of the Commonwealth can apply for a grant from them - particularly if they are of Scottish descent or have a connection to Scotland…


Quote:

Those domiciled in England, Wales or Northern Ireland should approach the College of Arms in London, while those domiciled in the Republic of Ireland should approach the Chief Herald of Ireland in Dublin.  Commonwealth citizens, in particular those of Scottish descent - save for Canada and South Africa which have their own heraldic authorities - can apply to the Lord Lyon King of Arms.

 

 
Joseph McMillan
 
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Joseph McMillan
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27 May 2015 23:29
 

Kathy McClurg;104375 wrote:

Interestingly enough, the Lyon Court also claims all citizens of the Commonwealth can apply for a grant from them - particularly if they are of Scottish descent or have a connection to Scotland…


Yes, which is why the College won’t recognize them.  Fundamental disagreement on the issue.

 
Iain Boyd
 
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Iain Boyd
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28 May 2015 02:44
 

I would suggest that an application for a grant from citizens of England, Wales and Northern Ireland who are of Scottish descent in the male line would be considered favourably by Lyon Court.

Iain Boyd

 
Joseph McMillan
 
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Joseph McMillan
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28 May 2015 08:18
 

Iain Boyd;104377 wrote:

I would suggest that an application for a grant from citizens of England, Wales and Northern Ireland who are of Scottish descent in the male line would be considered favourably by Lyon Court.

Iain Boyd


Probably so, but that’s not what the Lyon Court website suggests.


Quote:

Those domiciled in England, Wales or Northern Ireland should approach the College of Arms in London, while those domiciled in the Republic of Ireland should approach the Chief Herald of Ireland in Dublin.  Commonwealth citizens, in particular those of Scottish descent - save for Canada and South Africa which have their own heraldic authorities - can apply to the Lord Lyon King of Arms.


Of course, the next paragraph implies that Americans of Scottish descent have to find a cousin domiciled in Scotland to apply for arms in the name of a shared ancestor on their behalf, which we know is not the actual practice.

 
Michael F. McCartney
 
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Michael F. McCartney
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28 May 2015 13:43
 

Re: little girls with boxes of salt under an umbrella—Joe is undoubtedly right as to trademark infringement, since any such depiction is likely to be so visually similar etc.  In other than trademark use, not so sure.  We have a local politician named Campbell whose campaign materials for years has used a typeface that to my aging eyes at least, is visually indistinguishable from what appears on cans of soup; but if the soup folks have complained (don’t know if they have) it’s been remarkably ineffective.  (I think it should be considered an infringement, but my appointment to Congress or the Supreme Court sadly seems to have been lost in the mails…)

For better or worse, so far we’ve had no politicians named Morton, so no cause for complaint from that quarter. (FWIW the company that owns the Morton trademark used to have a large salt evaporation pond operation on the corner of SF Bay near our town, but it’s now being restored as a marshland by the government.  Looks much better, but I have to close my car windows and shut off the air conditioner when driving past.)

 

AS to the conflicting claims and procedures between Queen Victoria Stree and New Register House, great spectator sport and one more reason to be grateful to the Continental Congress!

 
dschweitzer156
 
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dschweitzer156
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30 May 2015 19:17
 

Thank you all.