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I think that writing to our national senators and representatives is a good course of action for the time being,
This seems to me to fall into the same category as lobbying- at this point difficult with just heraldry on the table, as stated before.
Has there been any thought to consolidating our interests with those of other groups interested in specific legal protection for non-commercial image/symbol protection? Do any such groups exist?
Rather than push heraldry alone, couldn’t it be pushed instead as a clause in a larger bill?
Michael F. McCartney wrote:
Then some eswentially private/nonprofit clearing house could be set up which would, in effect, certify that thus-&-such new arms were in fact not infringements on whatever is protected, which the Uniform Code could accept as presumptive evidence of acceptabilility; with perhaps a clause making registrations provisional for "x" years within which anyone could challenge the registration as being legally faulty etc.
There is a slight problem with this setup that needs to be researched. It’s called the non-delegation doctrine, and suffice for this post to say that it can in some instances prohibit a private organization from exercising a function that appears governmental if the legislature fails to provide what are termed "intelligble principles." Non-delegation is a concern primarily on the state level, Federal non-delegation jurisprudence being rather deferential. I know this is the system in Germany but they have a different legal system that our.
Not a bad idea, I want to make clear, but like all the rest, isn’t a slam dunk.
This is why I wouldn’t propose delegating this function to a private group, but rather providing that courts may take proof of having registered or recorded arms with a private organization (or recording them at the courthouse, or publishing them in a heraldic journal, etc.) as evidence to support a claim of prior use. You don’t let the private group adjudicate claims, that’s up to the court. (I also would require the plaintiff to bear the costs of the prosecution, unless he can prove the defendant benefited materially—i.e., made money—off the usurpation; e.g., used someone else’s arms for advertising.)
(BTW—as I understand it, this is actually how the German system works.)
Joseph McMillan wrote:
[A]s I understand it, this is actually how the German system works.)
Speaking of, can you point me to some English language info on the German system?
I think Volborth addresses it in Heraldry: Customs Rules and Styles and Heraldry of the World. Also, my section on Germany in the article on Foreign Arms Registration for Americans was checked by our colleagues Jochen and Reinhard and by a couple of German heraldists in rec. heraldry. When I was writing it, I struggled through the discussion in German of heraldic law on the website of the Heraldic Association "Zum Kleeblatt," one of the oldest and most prestigious of the German heraldic societies, but here’s a link to a more abbreviated discussion in English:
http://www.geocities.com/Athens/Atrium/8018/lawofarms.html
It covers the mode of protection, but does not address the roles of the societies specifically. I’ll see if I can find something in English that does.
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I don’t know where to post this, but after reading the registration article, which I’d forgot about, I’d suggest it be posted on the home page so that it’s readily available.
Hugh Brady wrote:
I don’t know where to post this, but after reading the registration article, which I’d forgot about, I’d suggest it be posted on the home page so that it’s readily available.
The registration article?
Michael Swanson wrote:
Ah, thanks. I have read that one, too. Perhaps it should have a link on the homepage as it gets right down to brass tacks.
Some years ago I suggested using an inter-state compact to create a regional armorial authority encompasing North Carolina, South Carolina, Georgia, Florida, Tennessee, Alabama, and Mississippi. It has the merit of keeping the subject a state law matter while reducing the multiplicity of jurisdictions and, one hopes, achieving economies of scale. See “A Southern Call to Arms: An Armorial Compact to Revive the Office of Carolina Herald,†William Mitchell Law Review (Fall, 1990).
Cordially,
Duane L.C.M. Galles
What’s the westlaw citation…I cant seem to find this in a search…they only have full coverage after 1993.
The trademark approach to protecting arms seems like the best path to me. I seem to recall that the arms being granted in Canada fall under some aspect of their trademark laws. Am I correct? Or is it just that the Canadian arms will be treated as if they were trademarked?
As for the state approach, I have a question. If one state could be convinced to establish a heraldry office that registered arms for its citizens and for non-citizens, then would not other states have to recognize these arms because of the princple of full faith and credit in the Consititution? It might be impossible to lobby the federal government or a significant number of states, but a single state might be a possibility. Imagine if Idaho established a law like this and made it contingent that if you were an out of stater, then you have to visit the state for a week to have your arms registered. The state could get the registration fee plus some tourist dollars. Just speculating, sorry to pick on Idaho.
Lastly, I wonder has anyone ever tried to sue someone else in America for the usurpation of their arms. I seem to recall that there was a court case like this back in the 1950s, but I cannot remember where or what the outcome was.
Treating arms as trademarks is iffy since they usually aren’t used in trade, etc. On the other hand, a provision barring the registration of a trademark that infringes on registered arms would serve much the same purpose,
dulongj wrote:
The trademark approach to protecting arms seems like the best path to me. I seem to recall that the arms being granted in Canada fall under some aspect of their trademark laws. Am I correct? Or is it just that the Canadian arms will be treated as if they were trademarked?
Congress has the right to regulate interstate trade, which gave rise to the Trade Mark and the offices that register such. As personal marks are not used in commerce, that office could not legally touch the issue.
The whole copyright issue comes under the establishment of the Library of Congress and they can only copyright an author or artist’s works (until 70 years after their death). Armorial bearings are not a "work of art" or a "literary work", or any other variant thereof. What we see as the Arms is an artist’s interpretation of the description of the arms. The blazon could be rendered several different ways and still be technically correct. So, Joe Williams sees my Arms and decides that they look really cool and starts using them. If I have registered the artwork, then that would be protected. However, if Joe has someone else render the Arms from the Blazon, then he could technically use my bearings as his own, only because there is no conflict in the artist’s rendering of the blazon with the copyrighted version.
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then would not other states have to recognize these arms because of the princple of full faith and credit in the Consititution?
Reciprocity between states is not a given. For example, Arizona does not recognize members of the Bar from other states. Therefore, my neighbor who sat on a State Supreme Court back East can not practice Law in the State of Arizona. And lawyers from Arizona can not practice law in any other state either. Some states do recognize the laws of other states, but it is not a given. So, I register my Arms in Idaho, but Joe is in Mississippi, which does not recognize protections given to citizens of Idaho. I then have to go to Mississippi and plead my case of infringement without the protection of Law on my side. Now, Mississippi may decide that, while it does not recognize and extend the protection from Idaho into Mississippi, it may just recognize "prior claim" and decide that I have an established claim that is older than the usurper. Then again, even though I do have the prior claim, it is moot, as it exists in a different jurisdiction and therefore has no weight in Mississippi, and therefore the usurper is free to use my device in their State. Or, I sue Joe in Idaho and hope that the "Long Arm" can reach him in Mississippi. He may just blow it off and even though I may get an injunction and a "Cease and Desist" order issued by Idaho, Mississippi may not recognize the orders and Joe is still free to use my Arms as he so desires.
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Lastly, I wonder has anyone ever tried to sue someone else in America for the usurpation of their arms. I seem to recall that there was a court case like this back in the 1950s, but I cannot remember where or what the outcome was.
This is actually listed elsewhere, but I can’t find it right now.
The issue would be for protection of the blazon and any interpretation thereof. There is no provision in law for that protection for a private individual. If you are treated as a private company, then you could (possibly) register the blazon as a service or trademark. The question then would be: Would an artist’s rendering of the blazon be an infringement upon the service or trademark? The right for an individual to have a personal mark description and any rendition thereof and protection from infringement upon the usage thereof does not exist under current law. Without specific legislation regarding personal devices, this would have to be a case that ended up in the Federal Courts as a test case. If it held that the description of a personal device, and any rendition thereof, is protected as part of a person’s identity, then there would be precedence. If the test case went the other way, then any armorial bearings could be usurped at will without any repercussions.
It’s my understanding that, in the U.S., a copyright is more or less automatic upon creation of the work. It’s proving, among other things, the date of creation, etc. that is needed to prove infringment.