Getting a COA registered

[MacMillan of Rathdown]

There is a general assumption (no pun intended) put forth by Scott in this part of the debate that assumed arms are likely to be duplicates of granted arms. I don't know if that is an intentional effort to put forth the notion that people who assume arms are by and large usurpers of granted arms, but it is a gross mischaracterization of what it means to assume arms.

Kenneth, in those quotes you've selected the topic really was "coincidentally identical arms, and who the courts might consider to be the rightful owner of said devisal". You are reading far to much into what I have posted. As far as it being "a gross mischaracterization of what it means to assume arms" (that they usurp the rights of granted arms) I don't believe that I have directly spoken on this particular point at length, and I certainly haven't said that assumed arms, for whatever reason, always trespass on the rights of substantive armigers. (I know for a fact that you, and the others in your group, go out of your way to make sure that any devisals you may come up with are as clean as a hound dog's tooth. But that's really not the larger issue, as I see it.) What has been discussed, is the legal vs. quasi-legal status of substantive vs. assumed arms.

To add to I what have already said on this subject, ... if by coincidence identical arms are possessed by the grantee of "substantive" arms and by one who has assumed arms and the assumer can establish use of said arms prior to the date of the grant, he can just as easily sue for damages and would stand just as good a chance of winning as the grantee in Scott's example above. It is not a matter of grant trumping assumption, but a matter of when ownership of this intellectual property occurred. (emphasis added-MoR)

Having been deposed as an expert witness in a suit over a specific type of moveable intellectual property which closely parallels armoury, it has been my experience that the courts in the United States look to the date of first registration-- even if it was last week-- as the proof of ownership.

The specifics of the case involved a clan society (naturally) and an "armorial logotype". As it happened, there was a split in the society and an argument ensued over the ownership of the logotype. Ultimately the original group sued the splinter group and the whole thing went to court. The plaintiff's case collapsed when the defendants produced a copy of their trademark registration (a document that grants exclusive use of a well-defined design to a single individual or group, in approximately the same way a grant of arms confirms exclusive rights to the armiger). The position of the court, in this instance, was that the first to register the design was the owner.

[SlackerDrummer]

Kenneth, in those quotes you've selected the topic really was "coincidentally identical arms, and who the courts might consider to be the rightful owner of said devisal". You are reading far to much into what I have posted. As far as it being "a gross mischaracterization of what it means to assume arms" (that they usurp the rights of granted arms) I don't believe that I have directly spoken on this particular point at length, and I certainly haven't said that assumed arms, for whatever reason, always trespass on the rights of substantive armigers. (I know for a fact that you, and the others in your group, go out of your way to make sure that any devisals you may come up with are as clean as a hound dog's tooth. But that's really not the larger issue, as I see it.)

Thanks for the kind words and the clarification.

What has been discussed, is the legal vs. quasi-legal status of substantive vs. assumed arms.

Having been deposed as an expert witness in a suit over a specific type of moveable intellectual property which closely parallels armoury, it has been my experience that the courts in the United States look to the date of first registration-- even if it was last week-- as the proof of ownership.

The specifics of the case involved a clan society (naturally) and an "armorial logotype". As it happened, there was a split in the society and an argument ensued over the ownership of the logotype. Ultimately the original group sued the splinter group and the whole thing went to court. The plaintiff's case collapsed when the defendants produced a copy of their trademark registration (a document that grants exclusive use of a well-defined design to a single individual or group, in approximately the same way a grant of arms confirms exclusive rights to the armiger). The position of the court, in this instance, was that the first to register the design was the owner.

Having been an expert witness then, you know full well the hugely significant difference between a registered trademark and even a piece of copyrighted artwork. As a coat of arms in this country is barely (if at all) protected by copyright law (except for a specific exemplification thereof), you can appreciate how much more difficult it would be to hold said coat of arms up to the standard of a trademark.

As you have said, it is the date of registration that matters. What you neglected to say is the date of registration with whom. In this case, it would be the United States Patent and Trademark Office under the Department of Commerce, not a foreign heraldic authority. And the reason that a trademark is registered with the Department of Commerce is because it has to be used in commerce. A personal coat of arms cannot be registered as a trademark unless it is used in one's business and therefor it has none of the legal protection of a trademark.

[MacMillan of Rathdown]

Thanks for the kind words and the clarification.

Having been an expert witness then, you know full well the hugely significant difference between a registered trademark and even a piece of copyrighted artwork. As a coat of arms in this country isn't barely (if at all) protected by copyright law (except for a specific exemplification thereof), you can appreciate how much more difficult it would be hold said coat of arms up to standard of a trademark.

As you have said, it is the date of registration that matters. What you neglected to say is the date of registration with whom. In this case, it would be the United States Patent and Trademark Office under the Department of Commerce, not a foreign heraldic authority. And the reason that a trademark is registered with the Department of Commerce is because it has to be used in commerce. A personal coat of arms cannot be registered as a trademark unless it is used in one's business and therefor has none of the legal protection of a trademark.

My experience in trademark law is limited, whereas my experience in matters of copyright has a somewhat broader scope. As I understand it, here in the United States, the present copyright laws and conventions protect the original work, in any and all forms, in which it may be rendered. For example, if you write a book no one may write a sequel, or produce a play or film, based on that work. Likewise, if you are a painter, no one can "copy" that picture without your permission; you, on the other hand, can produce copies in any size or medium that you choose. In other words, the copyright limits the use of the original to the copyright holder. (There is provision for "fair use by others" but that is beyond the scope of this post.)

The problem with a trademark (insofar as a coat of arms is concerned) isn't that the actual "mark" (the shield) can't be registered; it probably can, as a sign of membership, but rather that once registered it would be equally available (without brissure) to everyone within the definition of the "purpose of the trademark user". Let's say you decided to TM your arms. What would be the purpose of the use of the TM? Let's say you said, "to define and identify descendants of the late Phineas Mansfield" (or whatever your grandfather's name may have been). Once the trademark is passed, all of Phineas's descendants have identical arms, because the original TM can't be altered (by normal cadency) without applying for a new TM for each and every descendant.

In any event, for the orderly transfer of the copyright/trademark of the arms from one generation to the next the arms should probably be in the name of the proprietor as a corporation sole.

[SlackerDrummer]

My experience in trademark law is limited, whereas my experience in matters of copyright has a somewhat broader scope. As I understand it, here in the United States, the present copyright laws and conventions protect the original work, in any and all forms, in which it may be rendered. For example, if you write a book no one may write a sequel, or produce a play or film, based on that work. Likewise, if you are a painter, no one can "copy" that picture without your permission; you, on the other hand, can produce copies in any size or medium that you choose. In other words, the copyright limits the use of the original to the copyright holder. (There is provision for "fair use by others" but that is beyond the scope of this post.)

The problem with a trademark (insofar as a coat of arms is concerned) isn't that the actual "mark" (the shield) can't be registered; it probably can, as a sign of membership, but rather that once registered it would be equally available (without brissure) to everyone within the definition of the "purpose of the trademark user". Let's say you decided to TM your arms. What would be the purpose of the use of the TM? Let's say you said, "to define and identify descendants of the late Phineas Mansfield" (or whatever your grandfather's name may have been). Once the trademark is passed, all of Phineas's descendants have identical arms, because the original TM can't be altered (by normal cadency) without applying for a new TM for each and every descendant.

In any event, for the orderly transfer of the copyright/trademark of the arms from one generation to the next the arms should probably be in the name of the proprietor as a corporation sole.

The problem is this - derivative works do not share the same protections under US copyright law as original pictoral, graphic, and sculptural works. My assumed arms might be unique...maybe. Your granted arms surely are not (and of course they should be derivative of the MacMillan chief's arms since you are a MacMillan).

EDITED TO ADD: I neglected to mention that the standards for copyrighted works varies for different media (visual arts, performing arts, etc.), which is why your mention of a book and its sequels is irrelevant.

Additionally, I missed a point you were trying making I think. Unlike filing a business with your Secretary of State which can be done and then ignored to some extent, in the application for a trademark, you have to actually prove it's use in commerce (and perhaps even interstate commerce).

[Joseph McMillan]

When we were developing the American Heraldry Society's "Guidelines for Heraldic Practice in the United States Recommended* by the American Heraldry Society," we discussed at great length the following sort of scenario:

1. A family--let's call them the Hancocks--has been using a coat of arms, Gules, a dexter hand couped on a chief Argent three cocks Gules, in what is now the United States since the early 1700s. There are many extant artifacts with unimpeachable provenance, such as seals, silver, porcelain, and the blazon was published in Bolton's American Armory. The College of Arms has no record of these arms, and they've never been registered as a trademark, never copyrighted, etc., merely used for nearly 300 years without challenge.

2. In 1956, Han Xiao-xi, an immigrant from Hunan, sees the arms of Hancock on a Chinese export porcelain bowl in the Boston Museum of Fine Arts and thinks it would make a fine logo for his chicken restaurant, Han Cock. He registers the logo as a trademark with the Commonwealth of Massachusetts. After opening franchises in Rhode Island and New Hampshire, he registers it with the U.S. Patent and Trademark Office in 1962.

3. In 2008, An American of Scottish ancestry, James McHancock, petitions Lord Lyon for a grant in honor of his 5 x great-grandfather with matriculation to himself as heir male. Lord Lyon grants and matriculates Gules, a dexter hand couped on a chief Argent three cocks Gules.

Who has first right to these arms? The family that can prove 300 years of prescription and first publication, the first person to register them officially in some form in the United States, or the person with a grant from an official heraldic authority, albeit a foreign one?

I know how I would answer this. How would others?

The AHS guidelines can be examined at http://www.americanheraldry.org/page...ide.Guidelines

____________
* I emphasize "recommended" because the AHS is quite conscious that it has no standing to dictate anything to anyone.

[MacMillan of Rathdown]

The problem is this - derivative works do not share the same protections under US copyright law as original pictoral, graphic, and sculptural works. My assumed arms might be unique...maybe. Your granted arms surely are not (and of course they should be derivative of the MacMillan chief's arms since you are a MacMillan).

Kenneth, I am afraid you are in error. Provided you are the owner of the copyright of the original piece, you also hold an equal copyright to any other pieces derived from the original. With regards to arms based on, or "derived" from, arms already in use (ie: chiefly arms) you need to remember that the letters patent issued by the granting authority are prima facie evidence that the arms depicted on the document are, in fact, uniquely the sole property of the individual named on the document. Thus, each act of a substantive granting authority creates a new and unique piece that can be copyrighted if the recipient so chooses.

EDITED TO ADD: I neglected to mention that the standards for copyrighted works varies for different media (visual arts, performing arts, etc.), which is why your mention of a book and its sequels is irrelevant.

No, it's not irrelevant, it is 100% on point. Unless I have misunderstood you, you had suggested that copyright covered the exact image, without variation. With a book it isn't the size (hard back, trade edition, or mass market paperback) but rather the intellectual content which is copyright. The same applies to the arms; it is the intellectual content of the blazon which is copyright, not the size and shape of the shield, or the manner in which it is depicted on the letters patent.

Additionally, I missed a point you were trying making I think. Unlike filing a business with your Secretary of State which can be done and then ignored to some extent, in the application for a trademark, you have to actually prove it's use in commerce (and perhaps even interstate commerce).

Rather than go into a really looooooong description of tradmarking in the USA (which really is off topic), I would suggest that anyone who wants to do this first read the Wikipedia article on trademark (which is a very good overview), and take away the understanding that (1) you can file for your trademark before you go into commerce, and (2) that virtually anything can (and probably has been) trademarked. The basic requirement is that the trademark is intended be used in commerce; merely placing your arms on your calling card qualifies for a trademarking.

[Joseph McMillan]

Scott,

I understand your position on this. It is not that of several intellectual property attorneys I've consulted with on the subject. Obviously lawyers make their money by disagreeing with each other, but for what it's worth readers might want to see what other experts have said on this subject. The following was put together on the basis of legal advice and appears on the AHS website:

3.  Why Not Trademark or Copyright My Arms?Many people ask why they cannot protect their arms in the United States under either the copyright or trademark laws.

3.1  CopyrightThere are several problems with relying on copyright to protect armorial bearings. First of all, U.S. courts have consistently held that copyright to a work of art subsists only in the specific rendering, not to the general idea of what is depicted. An artist may hold the copyright to a painting of a blue shield with a golden deer jumping over a silver log, but this does not prevent another artist from painting the same scene in a different style. Thus, a specific emblazonment of a coat of arms may be copyrighted, but that will not prevent another artist from emblazoning the same arms with a different shape of shield, a different rendering of any animals in the design, changing the helm, changing the mantling, or any other alteration that a court might find substantial enough to constitute a new work of art. Even a slight difference might suffice in the eyes of a court. Some have suggested that perhaps the blazon could be copyrighted, but what is subject to copyright is a new creative work, and the courts have found that a basic description of a creative work is not necessarily creative in itself. In any case, there is sufficient flexibility in how arms are blazoned that it would be easy to evade any protection offered by asserting copyright in the blazon.

Even if it were possible to copyright the general idea of a particular coat of arms, and extend that protection to all derivative depictions of the same arms, one would still have to show that the design of the arms required creative effort. This would not apply to arms inherited from ancestors, or to arms granted by foreign sources. Other issues include the fact that copyrights can be bought and sold; customarily personal arms cannot. Finally, copyright in any work exists for only a limited time. While recent legislation has extended the duration of copyright, it eventually expires. But the main thing that distinguishes personal armorial bearings from other symbols is that they are indefinitely hereditary in the same family.

3.2  TrademarkIt 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.

[SlackerDrummer]

Kenneth, I am afraid you are in error. Provided you are the owner of the copyright of the original piece, you also hold an equal copyright to any other pieces derived from the original. With regards to arms based on, or "derived" from, arms already in use (ie: chiefly arms) you need to remember that the letters patent issued by the granting authority are prima facie evidence that the arms depicted on the document are, in fact, uniquely the sole property of the individual named on the document. Thus, each act of a substantive granting authority creates a new and unique piece that can be copyrighted if the recipient so chooses.

As far as heraldry is concerned, yes, we all agree your arms are unique. As far as copyright law is concerned, however, the protection "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material." So if you agree that the arms of Makclenand of yt ilk dating from the 16th century are protected, then the difference between them and yours (blue stars rather than red) is what is unique and therefore that change is what is covered in your protection under the law. In no context, I think you are absolutely correct in your assertions, but in the greater context of heraldry, I'm not convinced. Of course this is all intellectual debate as there is no historical context in which to place it (in the US court system).

No, it's not irrelevant, it is 100% on point. Unless I have misunderstood you, you had suggested that copyright covered the exact image, without variation. With a book it isn't the size (hard back, trade edition, or mass market paperback) but rather the intellectual content which is copyright. The same applies to the arms; it is the intellectual content of the blazon which is copyright, not the size and shape of the shield, or the manner in which it is depicted on the letters patent.

If your intent is to copyright the text of your grant, by all means keep using the example of the book. But the "intellectual content" of the blazon of a coat of arms is too abstract to be protected under copyright law. In other words the concept of a white shield with a red lion between two red bars with three blue stars in chief isn't subject. From the law: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Rather than go into a really looooooong description of tradmarking in the USA (which really is off topic), I would suggest that anyone who wants to do this first read the Wikipedia article on trademark (which is a very good overview), and take away the understanding that (1) you can file for your trademark before you go into commerce, and (2) that virtually anything can (and probably has been) trademarked. The basic requirement is that the trademark is intended be used in commerce; merely placing your arms on your calling card qualifies for a trademarking.

While placing the arms on a business card (not a calling card) does provide a good faith effort to show that you intend to use the mark in commerce and is good enough to register the mark, you must specify what goods you intent to sell under the mark or what services you intend to provide. The mark is only protected for the things listed on your application and according to the US Patent and Trademark Office, "If you list vague terms, such as 'miscellaneous services' or “company name,” your application will be considered void and you must file a new application."

Just out of curiosity, Scott, if you could register your arms as either a copyright or a trademark (which you can't), would that make them substantive in your mind?

[MacMillan of Rathdown]

As far as heraldry is concerned, yes, we all agree your arms are unique. As far as copyright law is concerned, however, the protection "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."

Basically this is saying 'you can't copyright a fact' only the conclusion drawn from that fact.

So if you agree that the arms of Makclenand of yt ilk dating from the 16th century are protected...

what is protected is the right of the owner of those arms to their exclusive use

...then the difference between them and yours (blue stars rather than red) is what is unique and therefore that change is what is covered in your protection under the law.

It has nothing to do with any change and everything to do with the right to protect that to which I have exclusive ownership through a perfect title in law.

In no context, I think you are absolutely correct in your assertions, but in the greater context of heraldry, I'm not convinced.

Here, it seems we part company, unless you want to pay my usual consultation fee of $250/hr-- !

Of course this is all intellectual debate as there is no historical context in which to place it (in the US court system).

It is, and for the life of me I can't imagine anyone else being interested at this point.... and if they are, maybe they need to get a life...

If your intent is to copyright the text of your grant, by all means keep using the example of the book. But the "intellectual content" of the blazon of a coat of arms is too abstract to be protected under copyright law.

No it's not; the blazon is the legal description of the arms. Since 2001/2 all grants made by the CHI have been copyright in the name of the state. It is the blazon, not the exemplification (usually depicted somewhere in the letters patent) which is used for the copyright.

In other words the concept of a white shield with a red lion between two red bars with three blue stars in chief isn't subject.

But it is, for the reasons cited above. You may not believe it to be so, but it is.

From the law: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Right. It means that the estate of Bram Stoker can't sue Anne Rice claiming that they own the copyright to the idea of a vampire novel, anymore than the College of Arms could sue the Chief Herald of Ireland claiming they own the concept of Heraldry.

While placing the arms on a business card (not a calling card)...["business" cards? ] does provide a good faith effort to show that you intend to use the mark in commerce and is good enough to register the mark, you must specify what goods you intent to sell under the mark or what services you intend to provide.

In your instance you could say "Armorial Advisor, or any such lawful enterprise which may be subsequently undertaken in the future" or some such, and append the letters "AA" after your name on your cards. (That will be $250 for the advice, thank you.)

The mark is only protected for the things listed on your application and according to the US Patent and Trademark Office, "If you list vague terms, such as 'miscellaneous services' or “company name,” your application will be considered void and you must file a new application."

Sorry, we're on the clock now, and any further advice is going to cost you.

Just out of curiosity, Scott, if you could register your arms as either a copyright or a trademark (which you can't)

Says who?-- Oh wait... we've already had that discussion...

...would that make them substantive in your mind?

Broadly speaking, yes; despite the process by which one may have arrived at that ownership, copyright/tm provides a means whereby one can produce a form of entitlement to those arms-- proving ownership-- and therefor could, conceivably, successfully defend them in court. In effect they would be "homesteading" those arms, as opposed to having a clear title (a grant) in the first instance. To further the land ownership analogy, the difference between arms held by prescriptive right and those held by substantive right could be likened to "squatters" rights, vs. deeded rights, while those with copyright/trademaked rights fall somewhere in the middle, like homesteaders.