Chivalry Is Not (Everywhere) Dead: Legal Protections of Coats of Arms
Of the many controversies that have surrounded Donald Trump, perhaps the quaintest concerns the emblems of the Trump Organization’s golf clubs.1 The emblem of the Trump Organization’s golf clubs in the United States derives from the coat of arms of Joseph Edward Davies, who was married to the original owner of Mar-a-Lago, Elizabeth Merriweather Post.2 The images are the same, except that the Davies motto has been replaced with the name “Trump.”3 The Trump version appears on the golf clubs’ websites, promotional materials, and on the fabric of the buildings.4 Several of Joseph Edward Davies’s grandchildren considered suing Trump Organization, but one of them, former United State Senator Joseph D. Tydings, dissuaded his cousins by arguing that litigation against Donald Trump would be too expensive.5
If Senator Tydings and the other descendants of Joseph Edward Davies (hereinafter, the Davies-descendants) changed their minds and sued, what would be their claim? At first glance, Trademark law would appear to offer the appropriate legal framework. The Trump Organization has registered its version of the coat of arms as a trademark with the USPTO, and in the United States they are actively using it as a commercial logo to identify golf courses as Trump-brand courses.6 In order to cancel the Trump Organization’s trademark, the Davies-descendants would have to plead that the trademark is invalid within the terms of the Lanham Act.7 They would probably argue that the Trump Organization’s use of the coat of arms is misleading as to the source of the golf courses, and they might also argue that the trademark was obtained fraudulently if there was evidence that the Trump Organization knowingly misled the USPTO as to the emblem’s origin.8 Even though the Trump version of the coat of arms could easily be mistaken for the Davies version, I strongly doubt that the Davies-descendants would prevail on either claim, and I suspect their suit would not even survive a motion to dismiss.
A significant problem for the Davies-descendants would be that the right they would be attempting to vindicate is not really one that Trademark law is designed to protect. A trademark is a commercial asset and an information-sharing mechanism; it protects the owner’s investment in building a good reputation for the brand, and it protects the consumer’s interest in knowing from where goods and services originate.9 As far as I am aware, neither Joseph Edward Davies nor his descendants used the coat of arms as a logo for resorts or for any other business. Moreover, it seems doubtful that many people would look at a brochure for a Trump golf course and be misled by the coat of arms into thinking the Joseph Edward Davies or his descendants had anything to do with the business.10 The Trademark framework is fundamentally mismatched to the nature of the right and entitlements that the Davies-descendants would be attempting to vindicate in this hypothetical litigation. For them, the coat of arms does not appear to be primarily a commercial asset. For them, it appears to be a matter of family honor.11
The law of defamation is the natural vehicle for defending one’s good name. The Davies-descendants might try arguing that the Trump Organization’s use of an emblem very closely resembling the coat of arms amounts to libelous statement that the Davies-descendants are associated with the golf courses. A detailed analysis of this hypothetical libel claim is beyond the scope of this blog post. Yet a crucial point to note is that, whether the claim be libel, trademark invalidity, or both, the plaintiffs would have to demonstrate why a court should deem the original coat of arms to signify the Davies-descendants. The College of Arms, which is the body that awards and confirms coats of arms in England, Wales, and Northern Ireland,12 made the grant to Joseph Edward Davies in 1939.13 Therefore, the basis for the emblem’s putative signification of the Davies family is the authority of what is, from an American perspective, a foreign institution administering a foreign or, at best, obsolete body of laws. This fact would be awkward, to say the least, for our hypothetical plaintiffs.
In the four countries of the United Kingdom, and in some countries of the Commonwealth, the law of heraldic arms is still alive.14 This law governs the right to bear coats of arms in both affirmative and negative senses; it authorizes individuals and institutions to bear coats of arms, and it provides mechanisms for redressing infringements of that right. It has both administrative, investigative, adjudicatory, remedial, and even punitive dimensions.
The Sovereign, who is Queen Elizabeth II, ultimately has authority over heraldic matters. However, the Sovereign delegates that authority. In Scotland, that authority is delegated to the Lyon King of Arms.15 In England, Wales, and Northern Ireland, that authority is delegated to the Earl Marshal, who is the Duke of Norfolk. He, in turn, delegates the administration of that authority to the College of Arms, comprising three Kings of Arms, six Heralds, and four Pursuivants.16 Whereas the Lyon King of Arms performs both administrative and judicial roles in Scotland17, those two functions are separate in the rest of the U.K. The College of Arms can grant coats of arms to petitioners, and can verify a person’s or institution’s right by grant or inheritance to bear a coat of arms.18 However, the Earl Marshal’s judicial authority over heraldic matters is exercised through a different institution: the High Court of Chivalry.19
The law of heraldic arms is real law, from a Legal Positivist point of view.20 This body of law ultimately flows from the political sovereign.21 Moreover, it can inspire, habituate22, and coerce obedience through claiming the right to impose sanctions and also having the means at its disposal to effectuate that right.23
The College of Arms’ or Lyon King’s decision to grant or refuse a petition for a new coat of arms may be delightful or disappointing, but it is never controversial. However, controversies requiring adjudication can arise in respect of someone’s claim to have inherited a right to bear a coat of arms, or in respect of an allegation that someone is wrongfully using a coat of arms. As set down in statute, if the Lyon King in his judicial capacity finds that someone is misusing a coat of arms, he can enjoin them from using it and levy a fine.24 The maximum fine has not risen above the 100 Pounds set by the Scottish Parliament in 1672. However, even though the potential fine has become essentially nominal, the social authority that the power to levy a legally enforceable penalty represents is still compelling. Indeed, the Trump Organization, which is not known for being overly deferential to traditions of courtesy or for being reluctant to engage in a legal fight, changed them emblem it uses in its golf courses in Scotland after officials of the Lyon King’s Court started to investigate an objection to the Organization’s use of the emblem closely resembling the Davies arms.25 Moreover, the purpose of a fine is not only to inflict punishment, but also to add socio-psychological weight or a sense of realness to the court’s decision. This esteem in turn allows those whose claims the court vindicates to feel the satisfaction of having been proved right by a credible adjudicator. These dynamics appear to permeate the entire institution and thus invigorate the administrative declarations. In short, when the Lyon King of Arms, directly or through his agents, says in a judicial or administrative context that someone is or is not entitled to bear a certain coat of arms, people are very likely to believe him and obey.
In the rest of the United Kingdom, the judicial dimension of the law of heraldic arms is dormant, but certainly not dead. The High Court of Chivalry has not rendered a judgment since Manchester Corporation v. Manchester Palace of Varieties Ltd. in 195526, on which occasion the City of Manchester sued a theater for wrongfully displaying the city’s arms in the auditorium and using the city’s arms as its seal.27 Yet this period of silence, worthy of Clarence Thomas, does not imply that the Court no longer exists. When the Court sat in 1954-1955, it was doing so for the first time since 1737. The fact that Lord Goddard, the Chief Justice of England and Wales who heard Manchester Palace of Varieites as the Earl Marshal’s surrogate, makes a conspicuous point of saying that the defendant did not argue that the Court no longer existed, and the fact that he devotes a significant amount of space to rehearsing the statutory foundations and historical development of the Court’s jurisdiction over usurpation of arms cases, imply that doubts about the Court’s legitimate existence were in the air. However, since Lord Justice Goddard’s reaffirmation of the Court’s existence, nothing has happened to suggest that the Court would not be able to reconvene in order to decide a case meriting its attention. Moreover, as recently as 2011, the House of Commons successfully cited part of one of the holdings of Manchester Palace of Varieties, that the right to bear arms is a dignity rather than property, in order to support its refusal of a Freedom of Information Act 2000 request for information regarding the coat of arms of the Speaker of the House, on the basis that Section 37(1)(b) of the Act excludes information relating to “the conferring by the Crown of any honour of dignity.”28 The ongoing existence of the Court of Chivalry, therefore, seems secure.
As with the Lyon King’s Court in Scotland, the Court of Chivalry does not use heavy punishment to inspire obedience. Finding for the plaintiff, the Manchester Corporation, Lord Justice Goddard enjoined the Manchester Palace of Varieties from displaying the Corporation’s arms. He also awarded the Corporation the 300 Pounds that the lawyers for both sides had agreed to accept as the legal costs.29. However, the Court appears to have the potential to strike with stronger muscle. The plaintiff’s council argued that, in addition to the bonds, the Court’s judgment could be enforced through imprisonment under a warrant of the Earl Marshal, or by a declaration of contempt of court that would then be enforced by the High Court in the normal way.30 The defendant’s council did not dispute these arguments, and Lord Goddard did not contradict them.
Manchester Corporation’s petition to the Earl Marshal alleged usurpation of its coat of arms on two grounds: the theater’s display of the Corporation’s arms, and the theater’s use of the Corporation’s arms in its seal.31 The defendant did not dispute either of these facts, and their arguments focused on the lack of objection by the Corporation for twenty years and on the limits of the Court’s jurisdiction.32 Having rejected the defendant’s arguments and decided that the defendant’s use of the arms was wrongful, Lord Justice Stoddard draws an important distinction between wrongful display of the arms and wrongful use of the arms in a seal. Although confirming that displaying arms without the right to display technically violates heraldic law, he balances respect for heraldic tradition with the realities of modern commerce and habits. “Whatever may have been the case 250 years ago, one must, I think, take into account practices and usages which have for so many years prevailed without any interference. It is common knowledge that armorial bearings are widely used as decoration or embellishment without complaint.”33 He offers as examples arms as “decoration or embellishment”: ash trays, teapots, and other souvenirs displaying the arms of universities, colleges, dioceses, etc., that are “dear to the heart of…tourists, American and others, as well as sea-side visitors.”34 In contrast, wrongful use of arms on a seal is a truly grave transgression, because seals are used as an official mark of identification. “For the defendant company to sue the arms of the city as its seal looks very much like an attempt to identify the company with the Corporation.”35 Wrongful use of arms on a seal is too close to fraud for comfort. Furthermore, this quasi-fraud is enough to contaminate otherwise pardonable abuses of a coat of arms on tea cups or, in this case, above a theatre’s stage, thus resulting in Lord Justice Goddard enjoining the Manchester Palace of Varieties from displaying the Manchester Corporation’s arms in any way.36
Lord Justice Stoddard avoids fashioning a bright-line rule on what technical abuses of arms should be tolerated and which should be sanctioned.37 Nor, indeed, does he set a threshold at which point an alleged breach of the laws of heraldic arms would become serious enough to merit the High Court of Chivalry convening to hear the case.38 While this opinion does develop as a rule of thumb that the Court should not concern itself with merely decorative uses of coats of arms, it is not impossible that the commercial exploitation of a coat of arms might rise to the requisite level of seriousness – perhaps, hypothetically, if in the future a company owned by the former President of the United States sold in England merchandise emblazoned with a misappropriated coat of arms.
Although Manchester Palace of Varieties does not directly discuss Intellectual Property, the opinion hints at a crucial tension between armorial rights and Intellectual Property arising from how their respective framings of the right to use a definite intangible relate differently to traditional notions of property. Of course, neither Intellectual Property, nor the right to bear a coat of arms, is the same as real property. There is an ongoing debate in the legal academy over whether or not Intellectual Property is actually a version of property in the sense of something that is owned, or whether it is something slightly different, such as a holding of rights distinct from ownership, or something very different, such as a form of economic regulation.39 Yet by any reckoning, Intellectual Property can be used to facilitate economic trades between private parties. 40 Nobody doubts that Intellectual Property can be sold or licensed. In contrast, Lord Justice Goddard holds that the High Court of Chivalry has jurisdiction to hear the Manchester Corporation’s petition precisely because the case does not concern property as recognized under the common law, and therefore is beyond the jurisdiction of the High Court.41 “The right to bear arms is, in my opinion, to be regarded as a dignity and not as property within the true sense of the term.”42 Furthermore, even as he finds in favor of the plaintiffs and pronounces the sentence porrected by the plaintiffs, he edits the sentence so as to avoid any suggestion that the Manchester Corporation had the right to authorize (i.e. license) the Manchester Place of Varieties to use its coat of arms.43 The crucial point is that the right to bear arms is not private property that can be traded, but rather is an honor conferred on individuals by the Sovereign through her agents, the Earl Marshal and the Kings of Arms. That is why Lord Justice Goddard intimates that arms-covered tea towels are to be tolerated by reason of realism and magnanimity but not of law.
In British jurisprudence, a right to bear a coat of arms appears fundamentally to be tension with the notion of a trademark. While perhaps not quite being “property,” a trademark is at least within the orbit of property because Trademark law frames symbols as commercial assets. In contrast, as we have seen, a right to bear a coat of arms is dignitary and essentially non-commercial. Nevertheless, blurring of distinction between a logo and a coat of arms that Lord Justice Goddard observed in mid-20th century England has only intensified in the last seven decades. His picture of tourists – “American and others”44 – collecting souvenirs of their trips to see Britain’s great universities inspired seems quaint when compared with the modern reality that Oxford University has adopted a “Trade Mark and Domain Name Policy” that pledges to “preserve the value of the brand” by, among other things, registering as a trademark and licensing the University’s “logo,” as this document unabashedly terms a design featuring the ancient coat of arms.45
Even though in modern Britain coats of arms can formally be turned into commercial assets, the Trademark regime still pays respect, and to a limited yet still significant extent, defers to the law of heraldic arms and to the authorities charged with administering and adjudicating that law. Trademark’s ambivalent approach to heraldry is embodied in Section 4(4) of the Trade Marks Act 1994.46 This provision enables rules to be promulgated to prohibit an image from being registered as a trademark if it matches or closely resembles an official coat of arms. Parliament has in fact made such a regulation.47 Accordingly, when the Trump Organization attempted to register the Davies coat of arms as a trademark, just as the Organization had done in the United States, the British authorities refused the application.48 On the other hand, the Act and the Rule deviate from Manchester Palace of Varieties by conceding to the holder of the right to bear the arms the right to register the arms as a trademark and the power to override via his consent any regulatory prohibition promulgated pursuant to this statutory provision.49
Despite acknowledging that a coat of arms is special, and despite overtly deferring to the law of heraldic arms regarding the permissible boundaries of using a coat of arms50, the modern legislation does substantially erode the distinction between property and honor. Nevertheless, the right to bear a coat of arms attracts respect, enjoys a protection, and is treated with a reverence – albeit diluted reverence –, that are not associated with this right in the United States. Heraldic symbols do still have a cultural cache in the United States, but their value that once lay in a semiosis of honor has been fully commercialized. The commercialization of the semiotics of honor is supported by the reduction of coats of arms to logos in the eyes of the law. The day-to-day practice in the United Kingdom looks very similar, but a distinct body of law and institutions with both the right and power to enforce their decisions are well-warn yet still robust bulwarks against such commercial forces. Perhaps chivalry is not (everywhere) dead.
Danny Hakim, The Coat of Arms Said ‘Integrity.’ Now It Says ‘Trump.’, NY Times (May 28, 2017), https://www.nytimes.com/2017/05/28/business/trump-coat-of-arms.html (last visited Mar. 29, 2019). [https://perma.cc/CEG8-V82L]↩
Hakim, supra note 1.↩
Id.; Brent Sausser, Donald Trump Trademarks (Dec. 22, 2016), https://onlinetrademarkattorneys.com/donald-trump-trademarks/ (last visited Mar. 29, 2019) [https://perma.cc/8QNB-GWMT]; see also, e.g., Colts Neck, supra n. 4.↩
15 U.S.C. § 1064 (2006).↩
15 U.S.C. § 1064(3) (2006).↩
See Peter S. Menell et al., 2 Intellectual Property in the New Technological Age 861-70 (2018).↩
The analysis of any potential allegation of fraud is beyond the scope of this blog post, but fraud in a trademark application is often difficult to prove. See In re Bose Corp., 580 F. 3d 1240, 1246 (Fed. Cir. 2009) (holding that the standard of liability is willful deception).↩
I should stress that I have no actual acknowledge of the Davies-descendants. I am inferring their motives from the information contained in Hakim, supra note 1.↩
Hakim, supra note 1.↩
See Lord Lyon, supra note 14.↩
College of Arms, Officers of Arms, https://www.college-of-arms.gov.uk/about-us/heralds-officers (last visited Mar. 29, 2019). For a helpful chart, see The Heraldry Society, The Hierarchy of Heraldry in England, https://www.theheraldrysociety.com/about-heraldry/the-hierarchy-of-heraldry/ (last visited Mar. 29, 2019). [https://perma.cc/9J3G-F5ZL]↩
The Court of the Lord Lyon, About Us, https://www.courtofthelordlyon.scot/about%20us.htm (last visited Mar. 29, 2019). [https://perma.cc/TG3L-EA3T]↩
For a good overview of philosophical theories of the nature of law, see Andre Marmor and Alexander Sarch, The Nature of Law, Stanford Encyclopedia of Philosophy (Aug. 7, 2015), https://plato.stanford.edu/entries/lawphil-nature/ (last visited Mar. 29, 2019). [https://perma.cc/77ZP-NUP2]↩
See John Austin, The Province of Jurisprudence Determined (1832).↩
H. L. A. Hart, The Concept of Law (3d ed. 2012)↩
See Grant Lamond, The Coerciveness of Law, 20 Oxford J. Legal Stud. 39 (2000).↩
Lyon King of Arms Act 1867, 30 & 31 Vict. c. 17; Lyon King of Arms Act 1672 (RPS 1672/6/57).↩
Bob Dow, Donald Trump Faces Investigation Over Coat of Arms, Daily Record (Feb. 16, 2008), https://www.dailyrecord.co.uk/news/scottish-news/donald-trump-faces-investigation-over-969006 (last updated Jul. 1, 2012). [https://perma.cc/8U56-EN58]↩
Manchester Corp. v. Manchester Palace of Varieties Ltd.  1 All ER 387.↩
Id. at 391.↩
This refusal was upheld by the Information Commissioner. Info. Comm’r Office, Freedom of Information Act 2000 (FOIA) Decision Notice (FS50441355) (Sept. 17, 2012).↩
Manchester Palace of Varieties, 1 All ER, at 391.[footnote/] The formal mechanism of enforcement was risk of forfeiture of the 100 Pounds bond that plaintiff had defended had, at the time the suit was filed, entered into to abide by the Court’s judgment.[footnote]Id. at 390↩
Id. at 390↩
Id. at 389.↩
Id. at 390.↩
Id. at 394.↩
Id. at 395.↩
Id. at 394.↩
Id. at 395.↩
Id. at 395.↩
Id. at 395↩
See Robert P. Merges, What Kind of Rights Are Intellectual Property Rights?, in The Oxford Handbook of Intellectual Property 71-93 (Rochelle C. Dreyfuss & Justine Pila eds., 2018)↩
See id. at 94.↩
See Manchester Palace of Varieties, 1 All ER, at 387-88, 392.↩
Id. at 392.↩
Id. at 395.↩
Id. at 395↩
c. 26 (Eng.).↩
Trade Mark Rules 2008, SI 2008/1797, art. 10 (Eng.).↩
See Hakim, supra note 1.↩
Act, supra note 41, at § 4(4); Rules, supra note 42.↩
“Where such a mark is registered, nothing in this Act shall be construed as authorizing its use in any way contrary to the laws of arms.” Act, supra note 41, at § 4(4)↩