Note: We have received some commentary from the attorney for M-22 which we have posted below!
The Detroit Free Press reports that M-22 and M-119 cannot be trademarked by private companies. Michigan Attorney General Bill Schuette has ruled that the highway sign logos are public property and as such cannot be “commandeered” for private use.
“Because the State of Michigan, the creator of the design, placed the Michigan highway route marker design in the public domain, no entity can lawfully obtain intellectual property protection of the design under trademark or copyright law,” Schuette concluded.
“…The fact that they have appropriated the design from the public domain and affixed it to merchandise does not create a legitimate basis for trademark protection.”
That’s probably not the best news at M-22, the clothing business that has made the sign an iconic symbol of active life in northwest lower Michigan, but it doesn’t look like the ruling precludes them selling clothing and other products with the road sign on it.
Speaking of M-22, they are holding their annual M-22 Challenge this weekend at the Sleeping Bear Dunes National Lakeshore. The annual bike/run/kayak triathalon is a pretty cool spectator event if you’re in the area!
Commentary from Enrico Schaefer, Founding Partner at Traverse Legal, PLC
Michigan Attorney General Bill Schuette must know that trademarks, copyrights and other IP are matters of federal law. The State has no say in the matter. His opinion has no force under law at all. More importantly, his “opinion” is severely misguided and uninformed. Taken to its conclusion, no artist or photographer can have intellectual property rights in their artwork or photographs of state parks, buildings, landscapes, roads, etc. Public universities, funded with public dollars, could not hold IP either in their logos, trademarks or patents. Neither could the state of Michigan protect, for instance, its Pure Michigan campaign which has tens of millions of dollars invested in its campaign. It is also important to note that trademarking these road signs has literally no impact on the public domain rights. Assuming that these companies who have invested time and money creating IP rights around road signs to create valuable brands (no easy tasks for sure), the only impact is to keep someone from copying that use as a trademark. All other non-trademark uses, for instance to identify location, as always permitted. By limiting the trademark use to a single business who (a) was first in the market and (b) invested substantial money and risk in creating the market), companies are created which generate tax revenue and jobs. Without trademark protection, consumers are left with cheap knock-offs and imitations. Consumers can not identify source and the market is destroyed. What Schuette fails to comprehend is that without trademark protection, there can be no Nike or Microsoft or Google. Consumers would not buy products based on brand because consumers could never gauge quality based on a trustworthy source.
Thank goodness his overreaching is without effect, since the adverse impact to the Michigan intellectual property economy could be in the hundreds of millions of dollars or more. This appears to be just another example of overzealous government bureaucrats trying to expand their reach and control over Michigan businesses. Michigan Attorney General Bill Schuette proves once again he knows nothing about commerce and business. He has certainly proven he knows little about intellectual property.