It’s that time of year again, with bright red poppies popping up on lapels of TV newscasters, politicians and members of the public (at least in Canada and the UK), just as surely as snowdrops appear in spring. I wrote about this phenomenon in a blog last year, reproduced below, covering the history of using poppies as a token of remembrance, and discussing some of the intellectual property controversies that have arisen over the unauthorized use of poppy designs. Unauthorized uses seem to be a feature again this year.
Remembrance Day, 2020, will be different from those in the past. COVID-19 has changed many aspects of our lives and November 11 is no exception. There will be no parades, no mass wreath-laying at cenotaphs around the country, no crowds gathering to mourn and show respect, and the lone piper playing the lament will be very much a lone piper–but there will still be poppies. This year they will be sold more remotely than in the past; you won’t find older men and women with blue blazers and Legion berets standing in shopping malls with trays of poppies. In Canada the Royal Canadian Legion (which holds the trademark for poppies when used for commemorative purposes) has initiated a touchless “Pay Tribute” credit card tap-enabled donation box in conjunction with one of the major banks. You can also purchase a digital poppy to display online. And of course you can purchase poppy-themed anti-COVID masks.
The Legions in both Canada and the UK market a variety of poppy themed items –Marks and Spencer has teamed up with the Royal British Legion to produce a “Poppy Collection”, a 12 piece line featuring socks, ties, cufflinks, bracelets and earrings, among other “essentials”–and masks have been added this year to the Legions’ repertoire. The official Legion masks on offer, however, are not particularly alluring, at least in my view. Masks have become a bit of a fashion statement (certainly in Canada where mask-wearing is generally not considered to be a political statement but rather a health measure), and retailers have been quick to fill the gap. In Canada, the Legion is marketing a sole mask design, featuring maple leaves, a small poppy and the Legion’s logo. To me it looks more like a promo for the Legion than a symbol of remembrance (although it seems to be selling well as they are now out of stock). A Remembrance Day mask delivered post November 11 has about as much value as a Christmas present delivered on December 26.
However, if you want a catchy poppy-themed mask, for example one featuring the timeless phrase “Lest We Forget”, or one with WW1 soldiers highlighted against the sky, or planes flying low over the countryside, or even a field of poppies, you will have to go to Redbubble or Etsy for masks produced by independent artists. These almost certainly violate the Legions’ trademark rights, and given the way Google Search works, when you search for poppy masks from the Legion’s Poppy Store or Poppy Shop, the first thing to appear is an ad from Etsy. Both Etsy and Redbubble are known for a somewhat cavalier attitude to the trademark and copyright status of products on their sites. They take the position that they are platforms—therefore they hear, see and speak no evil. If there is copyright violation, it is the artists or sellers who are doing it. If an IP owner in the US requests that the products be removed, they will do it, but don’t be surprised if the offending items are back up on the site again within a few days.
The sales from products on commercial sites like Etsy and Redbubble do not go to veterans, so perhaps the British or Canadian Legions will take action, although it may not be worth their while to do so. A few years ago, a group of eager knitters of poppies, who intended to donate the proceeds of their work to the Royal Canadian Legion learned to their chagrin that the Legion refused to endorse their work and reminded them of the Legion’s IP rights. It’s not clear whether any action was taken and this year there is a story about another well-intentioned person from a military family making and selling poppy masks in order to raise funds for veterans. The Royal Canadian Legion is unlikely to go after this Manitoba woman but it is careful to protect its intellectual property as the copyright notices on its website attest. However, none of the non-authorized designs that I have seen appear to have been copied from either of the Legions’ websites (if so, they would infringe copyright) although they arguably violate trademark rights. Probably the best thing that the Legion can do is to offer a wider and more attractive range of mask designs in future and ensure that they have enough stock on hand to meet demand.
Ideally, none of us will need masks by the time Remembrance Day 2021 rolls around so this may be a one-time story, at least insofar as the design of poppy masks is concerned. Let’s hope so.
© Hugh Stephens 2020. All Rights Reserved.
For those interested in reading more about poppies and intellectual property concerns, here is my blog on this topic published in November last year.
Remembrance Day Poppies and Intellectual Property Controversies
At the 11th hour of the 11th day of the 11th month in 1918, the guns on the western front in Europe fell silent. An armistice was declared. Germany didn’t formally surrender although it soon collapsed and the 1919 Treaty of Versailles treated it as a defeated country (with the results twenty years later that we all know about). Thus Armistice Day, now known as Remembrance Day in many countries including Canada, the UK and Australia, and Veteran’s Day in the US, was born. And for that reason, I am posting this blog on November 11.
Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. (When I was in Sydney last November 11, I spotted just one red poppy, an admittedly unscientific although first-hand survey). It is probably fairly well known (although with today’s young people it is probably wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.
It was an American teacher, Moina Michael, who campaigned to make the poppy the international symbol for remembrance of Allied war veterans, and to use their sale for veteran’s welfare. Between 1920 and 1922 the poppy was adopted by veterans organizations in the US, Britain, Canada, Australia and New Zealand. In Britain an organization known as the “Poppy Factory”, which still exists today, was set up to manufacture the paper poppies for sale for the support of veterans causes. That leads us into the main point of this blog, the intellectual property (IP) controversies that have arisen around the sale of the poppies.
What I love about writing this copyright blog is that one can always find a new twist. I confess that I am fascinated by the nooks and crannies of copyright, such as the blog posting I wrote on “Copyright and Your Carbon Footprint”, or the blog on whether copyright is gender neutral (I argued that it was. That was like poking a hornet’s nest!), or a rather bare-bones effort on copyright and death, or last week’s posting on copyright infringement as a form of hybrid warfare. So, since Remembrance Day is upon us, I feel compelled to explore whether there is a copyright angle to the wearing of poppies. And surprise, there is.
It’s a bit tenuous, mind you, although there is definitely an intellectual property angle as to who gets to produce and sell poppies. However, it is more of a trademark than a copyright issue but, hey, why quibble? It’s all IP. There have been controversies in both Britain and Canada involving production and sale of the little red flower. In both countries (and possibly elsewhere) the poppy is trademarked, by the Royal Canadian Legion (RCL) and the Royal British Legion (RBL), respectively, both respected veterans organizations. The Royal Canadian Legion’s website notes that the trademark was conferred by Act of Parliament in 1948, and is limited to the use of the poppy in remembrance;
“The Canadian trademark for the Poppy includes both the Legion’s Poppy logo, as well as the Poppy symbol, as it relates to Remembrance. The trademark does not apply to the use of the actual Poppy flower, unless that usage is misrepresented as the Legion’s Poppy by associating it with remembrance or the raising of monies for a purpose other than the Poppy Campaign.”
However the trademark extends to any colour or configuration of the poppy when used as a symbol of remembrance. This is increasingly relevant as various groups make their own versions available, from a white poppy symbolizing peace (some would say pacifism) to a rainbow-hued LBGTQ poppy that has caused some controversy.
Whether either of the Legions would take legal action against someone for producing and selling poppies of a colour other than red is an interesting question, but last year in Britain a seller at an outdoors market pleaded guilty to selling red poppies that had no association with the RBL. In Canada a group of knitters who were knitting poppies for the price of a donation, which they say they intended to give to the RCL, were reminded that they were violating the Legion’s IP. In addition to its statement of trademark, the RCL has a very clear copyright warning on its website;
“The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Reproduction of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from The Royal Canadian Legion…”
And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans welfare programs (although the Legion is not a registered charity). Nevertheless, the Legion IP monopoly on the poppy symbol (when used in connection with remembrance) has not been without its critics. Sean Brelyea, a former air-force officer and frequent commentator on veteran’s affairs, has argued that the Legion should no longer have exclusive control of the poppy symbol since it is not the only veterans organization in the country and, indeed, as the numbers of their veteran members has dwindled over the years owing to “natural attrition”, many of the Legion’s members have no association with veterans at all. Brelyea suggests that the Legion should licence use of the poppy symbol to other veterans’ organizations, with a concomitant sharing of the proceeds. I am sure that the RCL would argue that it alone is best placed to protect the meaning of the symbol and to ensure that poppies are effectively distributed in order to bring maximum returns. Last year over $16 million was raised.
Well, who knew that the innocuous looking poppy on people’s lapels on Remembrance Day carried such weighty IP concerns on its shoulders? When you drop your donation into the collection box, and pin your poppy on your jacket or shirt, remember…even the humble poppy can be controversial when it comes to trademark and copyright issues.
© Hugh Stephens 2019. All Rights Reserved
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