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Pollack on Governmental Marks

By Lawrence Solum

Malla Pollack has posted Governmental Marks: What Souvenirs Say About Speech and Sovereignty on SSRN. Here is the abstract:

?Governmental marks? are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group?s members. Legally classifying such words as trademarks commodifies them, increasing the namer?s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word?s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and Las Vegas used the courts to prevent local businesses from selling unlicensed souvenirs decorated with trademarks referring to their respective cities. The courts treated these disputes as no different from litigation over shoe-brands; even if the courts had classified the disputed marks as governmental, they could have ruled for the plaintiffs by invoking the doctrine of government speech.

This article argues against allowing mark-rights in governmental marks. It weaves together marketing literature, examples of recent marketing campaigns by various public-appearing entities, concepts from trademark law, free speech literature, and critiques of government accountability to illuminate the conceptual slippages demonstrated by these cases and by current marketing practices. First, most governmental marks lack a basic requirement for trademark-status; such marks generally do not signify one unique source. Furthermore, even if commercial practice led a substantial percentage of the public to perceive a unique source, legal recognition of such a source is incompatible with liberal, representative government. Additionally, the current practices in which governmental marks are embedded are counter-productive because they decrease citizen-control of government.

Full post as published by Legal Theory Blog on December 17, 2009 (boomark / email).