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September-October, 2010 Vol. 100 No. 5 Back to TMR Main Page
 
Patriotism for Profit and Persuasion: Trademark, Free Speech, and Governance Problems with Protection of Governmental Marks in the United States
 
 
This article begins by explaining the contemporary push for
government marketing (Part II), and the already-existing legal
authority regarding governmental marks (much of which does not recognize the trademark nature of the disputes) (Part III). Part IV applies disparate free speech doctrines to the governmental mark problem: both the emerging doctrine of “government speech” (Part IV.A.), and the traditional view of government action as regulation of citizens’ speech (Part IV.B.). Part V brings together trademark and non-trademark doctrine. It begins with an explanation of the long-established limitations on exclusive appropriation of geographically descriptive terms as marks (V.A.); it then adds the trademark requirement that a mark represent a unique source, explaining that as a factual matter many governmental marks do not meet this test (V.B.). It then explains why the basic theory of a liberal, representative government requires refusal to recognize a governmental mark’s tie to any unique source, even if a substantial segment of the public believed one existed (V.C.1.–3.). Part VI briefly visits governance problems aggravated by allowing governmental marks. Part VII sketches my proposal for a nontrademark approach toward putative governmental marks. In Part VIII, the paper provides specific examples of recurring governmental marks situations to demonstrate the appropriateness of my proposal: registration (VIII.A.); infringement (VIII.B.); certification marks (VIII.C.); destination marketing as modeled by Des Moines (VIII.D.1.), New York City (VIII.D.2.), and Las Vegas (VIII.D.3.); and government spokesmarks (VIII.E.). It then discusses the vexing issue of deciding which marks should be considered “governmental marks” for the purposes of the proposal (VIII.F.).
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