Boy Scouts and Olympics Get Extra-Special, Speech-Quashing Treatment From Congress
Boy Scouts and Olympics Get Extra-Special, Speech-Quashing Treatment From Congress
Boy Scouts and Olympics Get Extra-Special, Speech-Quashing Treatment From Congress

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    In the past Congress has granted certain organizations, such as the Boy Scouts of America and the Olympics special treatment when it comes to the use of names and logos. But with today’s trademark laws, isn’t it time to revisit the use of the law?

    About a year ago, Samantha Matalong Cook and a number of her
    friends decided to start an organization that would teach their kids how to
    make, build, and hack various types of technology. They called the group “Hacker Scouts,” and as they got
    underway, they started getting interest from thousands of parents around the
    country, all interested in joining or starting local chapters of their own.
    Soon, the Hacker Scouts applied for a trademark in their name. And since you’ve
    read the title of this post, you know where this is

    The Boy Scouts of America (“BSA”) sent
    them a cease-and-desist letter
    , saying they couldn’t call themselves
    “scouts.” This is ridiculous—the BSA doesn’t get to own the word
    “scout” for the purpose of naming organizations. Of course, they’ve
    gone to court to make that argument before, and have had some success (and
    some failure
    ) with it— but it seems that, according to them, no youth
    organization but theirs (with the exception of the Girl Scouts) gets to use the
    words “scout” or “scouting.”

    Trademark lawyers might at this point start thinking about
    how likely it is that someone might see the name “Hacker Scouts” and
    be confused as to whether or not the group was affiliated with BSA. That’s a
    necessary part of a court making a decision on trademark infringement—the
    “likelihood of confusion.” They might want to discuss whether “Boy
    Scouts” or “scouts” are generic, descriptive, or suggestive. But
    these questions might be less relevant than it seems at first. 

    Favored Organizations With Super-Trademark

    That’s because the BSA isn’t relying (just) on trademark
    law, but the fact that Congress has given them a special-purpose law in
    1916, which grants the organization

    the exclusive right
    to use emblems, badges, descriptive or designating marks, and words or phrases
    the corporation adopts…

    And courts have said that this means that the normal
    trademark standards—including safeguards that can prevent trademarks from
    overreaching and preventing legitimate uses of words—don’t apply. Read
    literally, the language of the statute would seem to indicate that the BSA
    could sue Disney for a song named “Be Prepared,” or adopt some new
    word or phrase as theirs and run with it, preventing anyone else from using it
    even if no one could possibly confuse the two.

    The Boy Scouts aren’t the only organization given this
    particular Congressional largesse. The U.S. Olympic Committee also has special rights in its
    name, the Olympic rings and other symbols, and the words “Olympics,”
    “Olympiad,” and even “Pan-American.” It famously wielded
    those rights in a Supreme
    Court case
    that forced a San Francisco athletic association to change the
    name of its event from the Gay Olympics to the Gay Games (an incident that
    makes you wonder how such a case might be decided today, with better-developed
    case law on trademark parody and a clear reason for “Gay Olympics” to
    be a criticism of the Olympic Committee).

    Besides the BSA and the USOC, there are 39 other
    that get similar special protections. Most are veterans’
    groups, but they also include the American Symphony Orchestra League, the U.S. Capitol Historical
    , and the National
    Tropical Botanical Garden
    (there are a lot more organizations named, but
    not all of them get exclusive rights in their names).

    These restrictions on these particular words and symbols
    come from a different set of laws than trademark, so the argument is that
    trademark defenses don’t apply to
    them. But should they?

    Consider the purposes behind these laws. They’re not meant
    to be rewards for these organizations being good causes, and they’re not meant
    to be a means by which the organizations can expand their control of the
    English language—they’re meant to protect the organizations from being imitated
    or impersonated by unscrupulous parties.

    This is the same impulse behind trademark law. Yet despite
    that valuable service, the law recognizes that trademarks can, if given too
    much power, stifle speech, just the way overbroad copyright protection can.
    Which is why the law needs to carve out a space for the First Amendment to
    exist within all these areas of law. The Supreme Court has
    that fair use and other copyright doctrines help preserve the
    First Amendment within copyright; trademark has its own limits that allow it to
    make way for free speech. These “super-trademark” laws are no
    different; they too are subject to the First Amendment.

    Obsolete Protections? 

    Given how similar these laws are to trademark, it’s also
    worth asking whether or not they’re now redundant and obsolete. Trademark law
    has come a long way (in ways both good and bad) since 1916, when the BSA got
    its special protection, and even since 1950, when the USOC was given its own
    exclusive rights. The world has certainly changed, too, with some of the
    organizations listed in the U.S. Code seemingly no longer in need of any special
    protection—the Veterans
    of World War I  of the United
    States of America
    would seem to no
    longer exist
    , for understandable
    . It might be time to ask whether this mishmash of laws remains
    necessary, when these organizations can make use of the same trademark laws
    that apply to the rest of society.