All Questions in Famous Marks >> Uncle Sam Character

Uncle Sam Character

Posted by . updated on 11/11/2009
I found an article (by Steven Heller - July 08, 2008) that states that variations of Uncle Sam can be used without paying a royalty.  Does this mean that if I'm free to trademark or copyright a drawing of my Uncle Sam type character without any issue regarding the basic ownership of Uncle Sam himself?  : 

that no single government agency or political entity actually owns the trademark registration rights to this valuable American ?intellectual property.? Any American?or foreign?business wanting a patriotic pedigree may freely use Uncle Sam in whatever political or commercial, silly or profound, context and for any purpose they desire, legal or extralegal. An unwritten law guarantees free and easy access to democracy?s symbolic trappings to any individual or institution that desires them.
If the government held licensing rights, then the profits from royalties they would generate could pay for major social programs. But no one receives a dime from the countless Uncle Sam reproductions once sold through type catalogs, clip art books and printers? stock catalogs, and now widely available on the internet.
Previous question: Polaroid Case >>
Answers (2)
 
DJoshEsq
I would say that is probably correct.  However, remember that a trademark designates a single source of goods or services.  Therefore, the variation should be significant and a descriptive use is probably troublesome without significant acquired distinctiveness (through for example, mass marketing or etc.).
 
 
JSonnabend
I'm not sure how an image of "uncle sam" can be descriptive.  What does it describe?

In any event, I would take Heller's argument with a giant grain of salt.  He is not an attorney, and his legal conclusions are, well, gobbledygook.  For instance, what the heck does "no single government agency or political entity actually owns the trademark registration rights to this valuable American 'intellectual property'" mean?  Does he mean the mark isn't registered?  Assuming that's true, it doesn't mean that no one owns the trademark rights.

Also, what the heck is "an unwritten law" that "guarantees free and easy access to democracy's symbolic trappings"?  That's a bunch of nonsense.

Finally, his notion of "licensing", at least in the trademark context, is sophomoric.  One does not simply "license" a trademark.  The licensor must exercise proper QC or risk losing its trademark rights to a naked license.  As for copyright licenses, governmental works are in the public domain by statute (17 U.S.C. ? 105), and copyrights in the work would have lapsed by now in any event.

- Jeff
 

Related Questions

Polaroid Case

Polaroid Case

In Famous Marks    -  updated on 11/11/2009
Do you agree that the test developed in the Polaroid case could be tinkered with, to improve protection for trademark holders and to help reduce possible confusion.
Uncle Sam Character

Uncle Sam Character

In Famous Marks    -  updated on 11/11/2009
I found an article (by Steven Heller - July 08, 2008) that states that variations of Uncle Sam can be used without paying a royalty.  Does this mean that if I'm free to trademark or copyright a drawing of my Uncle Sam type character without any issue regarding the basic ownership of Uncle Sam himself?  : 

that no single government agency or political entity actually owns the trademark registration rights to this valuable American ?...
Famousness under the TDRA

Famousness under the TDRA

In Famous Marks    -  updated on 11/11/2009
When opposing a mark's registration at the TTAB, how can you prove that your mark is famous amongst the general consuming public, so that you will be able to successfully survive a famousness challenge to a dilution claim under the more stringent Trademark Dilution Reform Act?

Thank you in advance for your help.

Using the name of an actor as a user name on a community website

Using the name of an actor as a user name on a community website

In Famous Marks    -  updated on 11/11/2009
Someone I know used the name of a fairly well-know celeb as a user name on community site.  The user name displays as part of the URL.  This is a non-commercial site and the person that created it is just using it to interact with friends.

While he has not been "told" to abandon the account, he has been contacted and asked if he would be willing to give it up so that an entertainment firm connected with the celeb could use it.

First question is, is t...
NBA/NFL Copyright Question

NBA/NFL Copyright Question

In Famous Marks    -  updated on 11/11/2009
Hi, I am wondering if it's legal to make a shirt that reads "Spurs" or "Pacers" or even "Bryant" without directing referencing the NBA.  Is the word "Spurs" copyrighted? 

How about "SA SPURS"?