Intellectual Property

The Cheapening of a Tourism Slogan

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In the 1990s, New York State's tourism board let the trademark on its "I ? NY" slogan lapse, encouraging a flood of unlicensed souvenirs carrying the famous logo. Since then the state has renewed its trademark and, in an attempt to rejuvenate the "brand," plans to crack down on what The New York Times calls "unlicensed fakes." But what exactly is inauthentic about T-shirts, towels, salt and pepper shakers, beer can holders, and paperweights that declare "I ? NY" without state authorization? Surely they clothe the torso, dry the hands, dispense the seasonings, keep the beverage cold, and hold the paper down at least as well as their licensed counterparts. Is the sentiment itself less sincere because it's not officially certified? Although it's easy to understand why the state wants its license fees, it'd hard to see how consumers are shortchanged by unofficial souvenirs.

In addition to the revenue from licensing, the state wants to control the types of merchandise associated with Empire State love. Ashtrays and lighters, for instance, are right out. The desire to control the messages linked to "I ? NY" has gone to decidedly unlovely extremes. The Times reports that the Pataki administration threatened to sue Milton Glaser for trademark infringement over his post-9/11 "I ? NY More Than Ever" logo. Who is Milton Glaser? The graphic designer who developed the "I ? NY" symbol in 1977 and let the state use it free of charge.

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  1. Why should an agency funded by tax dollars be able to trademark anything?

  2. I don’t believe the government should have trademark rights. Period. End of discussion.

  3. Milton Glaser is a legend.

  4. I’ve long insisted that my hatred of the Yankees was not an attack on New York itself. I may have to change that stance.

  5. How does this not meet the “genericity” criterion for a lapsed trademark? I would have thought by this point it’s so mainstream as to be non-registerable.

  6. “The Times reports that the Pataki administration threatened to sue Milton Glaser for trademark infringement over his post-9/11 “I ? NY More Than Ever” logo. Who is Milton Glaser? The graphic designer who developed the “I ? NY” symbol in 1977 and let the state use it free of charge.”

    HA!!! Enjoy the irony, commie!!!

  7. Since then the state has renewed its trademark

    WTF!? You’re telling me you can trademark something that is already established in the public domain???? NO! Say it ain’t so. How can this be?

    I’m seriously thinking there isn’t any IP at all that’s worth saving.

  8. To mess with Bloomberg, someone should market an I ? NY line of cigarettes.

  9. I ? facist t-shirts

  10. How about “I ! NY”? (Or will only the UNIX programmers get it?)

  11. At least there’s one form of property rights which the People’s Socialist Republic of New York seems to recognize.

    I’m inclined to let the New York – lovers suffer the consequences of their ill-advised affection. Freaks.

  12. “To mess with Bloomberg, someone should market an I ? NY line of cigarettes.”

    Or brand of firearm?

  13. Speaking of Bloomberg and guns:

    Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city. While trials are often tightly choreographed, with lawyers routinely instructed to not tell certain facts to a jury, a gag order on a section of the Constitution would be an oddity.

    Two birds, one stone!

  14. If I were a lawyer for the gun shop owner I would ask the judge to be fair and place a gag order on any evidence against my client.

  15. “Any references by counsel to the Second Amendment or analogous state constitutional provisions are likewise irrelevant,” the brief states.

    WOW! The law is irrelevant in a trial! Can we stop pretending that we follow the Constitution now? Let’s just give up on the legal and electoral systems altogether and have another revolution.

  16. “WOW! The law is irrelevant in a trial! Can we stop pretending that we follow the Constitution now? Let’s just give up on the legal and electoral systems altogether and have another revolution.”

    I don’t think Libertarians would be real happy with the results of the revolution.

  17. “I don’t think Libertarians would be real happy with the results of the revolution.”

    We now have the largest government in U.S. history.
    http://au.biz.yahoo.com/080512/2/1qlzn.html

  18. I don’t think libertarians are happy with what we have now. Things are getting only worse in the current paradigm. We might as well try something new.

  19. I don’t think libertarians are happy with what we have now. Things are getting only worse in the current paradigm. We might as well try something new.

    Russian in early 1900s: “Things really suck under the Tsar. Might as well try something new. Couldn’t possibly be worse, yeah?”

  20. Prolefeed, that was simply replacing one dictatorship with another. What I want is a new paradigm – a paradigm where people no longer think government is necessary at all. A paradigm in which all interactions are voluntary. So long as we continue down our current path all we will get is bigger and bigger government. The revolution I want is not a violent revolution but a revolution of the mind. We have one advantage over the founders – we cannot (yet) be jailed for advocating a peaceful revolution. That is what I propose. This revolution cannot be won through the voting system.

  21. Is there any way for a public-spirited tourist to detect a fake? “The simple answer is no,” Mr. Ranese said. Even the registered trademark symbol is easily counterfeited, he said.

    Yeah, all this newfangled computer processing power has enabled skilled counterfeiters to reproduce “TM”.

    Still, the products are fun.

    Seriously, is the NYT written by fifth-graders now? This article makes my college newspaper look like — well, I was going to say it makes it look like the New York Times, but now that doesn’t make any sense. You know what I mean.

  22. Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city.

    Yet another sterling example of my assertion that justice is never about getting at the truth, it is, instead, about tricks, games, mirrors, & technicalities.

    [turns and spits]

  23. I always thought that I ? NY bumperstickers went the route of these.

    And even if J Sub & PIRS are wrong, which they aren’t, NYC let the trademarks lapse. How can you make life hard for someone who stepped into whatever void was left behind when the mark lapsed?

  24. TWC,

    I’d be curious as to whether this is covered by trademark law. I thought once you allowed a trademark to enter PD by failing to sue infringers, that was the end of your trademark rights. I mean, can Duncan just “renew” their trademark for the term Yo-Yo, which lapsed decades ago, and then sue everyone using the term now?

    If this isn’t covered under trademark law, then one of two things is happening: the state is just bluffing, hoping “infringers” will be intimidated by the C&D letters, which would be a despicable practice; or they’re planning on actually passing special legislation about this, which would be even worse.

  25. Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city.

    Bet you the supreme court would allow this. The reasoning would probably go something like that you don’t have a constitutional right to assert a constitutional right. That having a right is a distinct concept from asserting asserting a right. Having a right is a passive activity. Asserting a right is an active activity. You need permission from the government to assert your rights.

  26. The Wine Commonsewer | May 12, 2008, 10:31pm | #
    I always thought that I ? NY bumperstickers went the route of these.

    When I clicked on your link and saw the “these” my first thought was “… now they’re waterboarding babies!?”

  27. “Plant Immigration Rights Supporter”

    Ludwig Von Mises advised against revolution as a way to spread freedom unless the majority is on your side. The majority is clearly not on our side.

  28. JS: great post and a classic example of why I check in often at H&R. I’d write more but my lawyer is on the line about my trademark for “LOL”. But before I go here’s “realtor” with a lower-case R… flagged as misspelled… and a “Realtor” not flagged as misspelled. LOL (TM)

  29. Hate New York City
    It’s cold and it’s damp
    And all the people dressed like monkeys
    Let’s leave Chicago to the Eskimos
    That town’s a little bit too rugged
    For you and me you bad girl

  30. I’m going to paint “I(heart)NY” (too lazy to find the heart key) on the large Bull Balls hanging from my truck…

  31. my favorite recent example of city agencies gone mad concerns the MTA and a local bagel joint in downtown brooklyn (by the 4th and 9th f/g station).

    they called themselves “F-Line Bagels” and the MTA threatened to sue them. so now they’re “Line Bagels” which isn’t nearly as catchy.

    apparently the geniuses at the MTA think a bagel shop and a gigantic public transportation system are easily confused.

  32. In a statement sent via e-mail to The New York Sun, the city’s criminal justice coordinator, John Feinblatt, said the issue at the upcoming Adventure Outdoors trial “isn’t the Constitution but whether the respondents broke federal firearms laws.”

    How about the issue of how a New York state court can allow New York City jurisdiction to enforce Federal law on a private enterprise in Georgia?

  33. I’m guessing that people thought the logo had lapsed into the public domain, but that there’s no proof that it had done so, so in the absence of such a proof, the state registered it. Possibly there was some public notice to contest the registration, and nobody did. However, someone could still make a case in court that the registration was wrongly granted, but there’s now a presumption that the PTO acted properly in granting it.

  34. I’m guessing that people thought the logo had lapsed into the public domain, but that there’s no proof that it had done so, so in the absence of such a proof, the state registered it. Possibly there was some public notice to contest the registration, and nobody did. However, someone could still make a case in court that the registration was wrongly granted, but there’s now a presumption that the PTO acted properly in granting it.

    Actually, if you don’t do anything to enforce the trademark for 5 years or so, you lose the right to it. Since most of these vendors and producers have gone about infringing on it for decades with nary a defense, a court is likely to find that the trademark did lapse.

  35. “Ludwig Von Mises advised against revolution as a way to spread freedom unless the majority is on your side. The majority is clearly not on our side.”

    I believe he was referring to revolution in the normal sense (i.e. the American Revolution or the French Revolution etc.). This is not to what I refer.

  36. McCain / Welch 2008

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