Getting a COA registered

[SlackerDrummer]

You gents are taking me to literally in the eagle feather question. I wasn't planning on plucking an eagle it was more a rhetorical question in regards to the CoA.

The first part of my answer - that I wouldn't wear a feather - was regarding either a real feather or a stylized one. The rest was just a friendly reminder (or perhaps new information for some).

[SlackerDrummer]

And in the United States, of course, there is neither a granting authority nor any legal provision for recognizing the validity of foreign grants of arms or protecting whatever rights those grants conveyed in the country of origin. That means that in the United States, an English or Scottish grant of arms has the same substantive status as arms assumed at will.

Does it? I wonder? I would think that at the end of the day, if someone with a substantive grant of arms brought a suit against someone who had merely assumed the same coat that they would be on firmer ground re: ownership of the disputed devise. That said, the concept of "first past the post" might equally apply, especially if the proprietor of the assumed arms could prove usage ante-the date of the granted arms. Hmmm....

First of all you are talking about the assumption of the same coat of arms that exists in a grant from a foreign authority. At the AHS we stress the importance of due diligence in creating a unique and original coat of arms if you are going to assume arms. So let's assume someone has usurped (intentionally or not) arms that were granted by a foreign authority to another person. Where would they sue and on what grounds?

Presumably the suit would take place in the jurisdiction where the tort took place. One party (presumably the substantive armiger) would have to establish that some sort of injury or loss occurred because the assumptive armiger was trespassing on the intellectual property rights that are inherent within a personal mark of identification, such as a coat of arms or a cattle brand.

Other than in Scotland, where the mis-use of arms is a criminal offense (defrauding the government of statutory fees), a suit of this sort would be heard in civil court.

Exactly. One would have to establish that damages occurred which would be very difficult unless 1) the grantee's arms were used in commerce and 2) the usurper's use of the arms had an impact on the grantee's business. And even then, I'm not sure a court would rule in favor of the grantee unless the actual image of the arms used by the usurper was one lifted from the grantee. I'm not sure, based on current American copyright or trademark law, that an original emblazonment owned by the usurper would be seen by the court as being the same as the grantee's.

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.

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.

[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.

[WVHighlander]

The first part of my answer - that I wouldn't wear a feather - was regarding either a real feather or a stylized one. The rest was just a friendly reminder (or perhaps new information for some).

No worries. As an armiger one can have their crest with feather, made from sterling silver. Still an interesting debate regarding Coats of Arms. It is something I am going to pursue for sure. I am going to try Lyon first for genealogical reasons. If Lyon says no then I will look at other organizations.

[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.

[SlackerDrummer]

Still an interesting debate regarding Coats of Arms. It is something I am going to pursue for sure. I am going to try Lyon first for genealogical reasons. If Lyon says no then I will look at other organizations.

I hear that Lyon Court is quite pleasant to work with. Good luck and let us know how it goes. In the meantime, we'll just chat on in your thread.

[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.