A Dash of Trademark Good Sense at HHS

by Paul Alan Levy

At a time when many federal agencies are moving to exert greater control over their names and seals, both seeking to monetize them as well as to engage in old-fashioned trademark bullying, it is nice to see that the Department of Health and Human Services has decided to pull back from that approach.  

Politico called attention back in April to proposed HHS regulations that would have declared that the HHS “seal, symbol and logo” were only for official use, and that any use by anybody outside the federal government, even by non-profit or advocacy groups, was strictly forbidden without the agency’s express written permission, and that violation of this rule was subject to prosecution.  Although I can understand a federal agency’s wanting to prevent a misleading use of its symbol to confuse consumers into believing that a given use is sponsored by that agency — a particular problem at HHS, where scammers frequently trying to trick elderly  people into trusting them with respect to social security and medicare benefits — I have less sympathy with the misuse of trademark-like rights to prevent the public from identifying the agency as a topic of discussion.  

And that includes admiration – today, anybody can walk down to the mall and buy a cheap Tshirt or hat emblazoned with the initials FBI.  Should we let the FBI monetize such uses, just as football and baseball teams were allowed, by using consumer surveys from an academic master whose deceptive survey tactics on behalf of his clients have since been exposed, to develop a line of caselaw that prevents members of the public from wearing the names and logos of the New York Yankees or Dallas Cowboys without paying rents to those teams?  The FBI got its head handed back to it when it tried such nonsense vis-a-vis Wikipedia a few years ago.

HHS has not addressed those issues directly, but Politico reported yesterday that HHS had retracted the proposed rules after receiving one “significant adverse comment.”   The office of public affairs advised that the Department's general counsel's office had taken charge of this issue. 

To which I say, bravo to its general counsel's office!  

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