Wednesday, May 30, 2012

No, You Can't Trademark Michigan's Highway Signs

In Attorney General Opinion 7265 just emailed out today, Attorney General Bill Schuette states in his opinion that State Highway markers, being part of the public domain cannot be trademarked by companies or individuals to prevent their use by others to identify goods or services.

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
The corporations may continue to utilize the Michigan highway route marker design alone or incorporate it within another design. But they must “disclaim” any right or interest in intellectual property that does not belong to them. 15 USC 1056(a) (“The Director may require the applicant to disclaim an unregistrable component of a mark otherwise registrable. An applicant may voluntarily disclaim a component of a mark sought to be registered”). Any other individual or company is also free to use the design to promote commercial goods and services. In other words, the corporations may not exclude other persons and businesses from using the Michigan highway route marker design on the basis of trademark law because a design in the public domain generally cannot be made the subject of a trademark or other protection.

As such, cease and desist letters from companies claiming exclusive rights in Michigan highway signs can be safely ignored, and everyone is free to use the signs provided they do not claim ownership of the sign elements in their works.

This was a very thorough and well-written opinion (12 page with 10 pages of attachments), as we've come to expect from AG Schuette and his staff, and a needed corrective to the overreaching on the part of some companies.

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