For the past couple of years at this time, as Remembrance Day (November 11) approaches, I have posted a blog on the copyright and trademark implications of the commemorative red poppies that become so ubiquitous on people’s lapels at this time of year, at least in certain countries. In both Britain and Canada, the main veterans’ organizations (Royal British Legion and Royal Canadian Legion) hold the trademark on poppies when used for commemorative purposes (and associated with the phrase “Lest We Forget”). They use the sale of poppy-themed products, and replications of the poppies themselves, as a fund-raising vehicle, with the funds earmarked for veterans’ welfare. They have also copyrighted a number of designs incorporating the poppies that are used on various products.
This year marks the centennial of using the poppy to raise funds for veterans needs while being a mark of remembrance for those who gave their lives in the First World War. In Canada, the poppy was adopted by the Great War Veterans Association (which later became the Legion) in July 1921, persuaded by Anna Guérin. After getting the poppy officially adopted in Canada, Mme. Guérin sailed for Britain to meet with the British Legion, which officially adopted the poppy in September of that year.
Despite the longstanding use of the red poppy by veterans’ organizations, others do not seem to be dissuaded by the Legion’s ownership of the poppy-related IP (intellectual property), nor are they influenced by the fact that the proceeds of sales go to benefit veterans. The internet is rife with all kinds of Remembrance Day poppy-themed products that have no relation to the Legion, with Amazon, Facebook, Shopify and Redbubble being among the main platforms that promote the infringing products. Search “Remembrance Day Products” on Amazon.ca and the first thing that pops up is an ad for a brooch featuring red poppies with the banner “Lest We Forget” superimposed across it, offered by an outfit called “Bling Stars”. Does Amazon care about the Legion’s IP or its mandate? Clearly not.
The problem has existed for several years, and while the Legion tries to go after transgressors, it does not really have the resources to do so. When it does, it goes after suppliers, not users, so you can be assured that if you show up to a cenotaph on November 11 wearing a non-Legion poppy facsimile, you won’t be slapped with a lawsuit. Still, it is discouraging that some suppliers take advantage of the commercial opportunity to flog poppy-related products without any regard for the Legion or the veterans that benefit from the sales of the products.
Interestingly, some of these “unauthorized” designs could well qualify for copyright protection, if they are original, (e.g. posters, or designs used on clothing such as scarves), yet they would at the same time be infringing the Legion’s trademark by incorporating the poppy in the design. The fact that a work can be copyrighted while simultaneously infringing another party’s trademark is not far-fetched. This can occur in photography, when a copyrighted photograph infringes another party’s copyright (such as a photo of a copyrighted painting) or trademark (photo of a trademarked logo), especially if the photograph is used commercially.
When it comes to infringement some people don’t give a damn, but others care and try to avoid it. I was approached by a small company in Indiana that makes decorated mailbox door covers, magnets, decals etc. Patriotic things for rural folks, like the American flag rippling in the breeze, and logos of college football teams. The company had decided to expand to Canada and market mailbox doors with the Canadian flag—and one with poppies! This company was diligent and respectful, wanting to do the right thing the right way. They ensured that their design of the Canadian flag was approved by the Department of Canadian Heritage and submitted their poppy design to the Royal Canadian Legion for feedback. They got approval of their design from Heritage, but the Legion turned them down flat. They were not interested in reworking the designs to make them acceptable (although a bouquet of flowers with a few red poppies in it would be unlikely to be a violation of the trademark, which is restricted to poppies used for commemorative purposes). Perhaps the problem was that this small company had not offered to license the design but were simply seeking the Legion’s approval. In any event, having read one of my blog postings on poppies and the Legion, they asked my advice.
I am certainly not qualified to provide any legal advice in this matter, and I was quick to tell them so. However, I did note that the Legion was zealous in protecting its IP and I could not rule out that they might decide to bring a trademark infringement case. I pointed out that Canadians are attracted to other things besides poppies—like maple leaves. Why not market a design with colourful, autumn maple leaves? The company thanked me for my views, noting that many other designs are popular with Canadians. I am not sure if that means they decided not to proceed with the poppy mailboxes—but I hope so.
I don’t have much else to add to previous blogs about the trademark and copyright issues related to Remembrance Day but do want to take this occasion to urge you to respect the IP of those who hold it if purchasing November 11 memorabilia. The Royal Canadian Legion’s trademark on the poppy was conferred by an Act of Parliament in 1948 as a gesture of appreciation for the sacrifice of veterans. That’s worth remembering.
And for those who missed it the first time around, below is my 2019 blog post outlining how the poppy came to be the symbol of remembrance, plus some of the controversies that have arisen from its use in this connection.
© Hugh Stephens 2021. All Rights Reserved
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. (Another prominent campaigner was Anna Guérin, who took inspiration from Ms. Michael and actively promoted adoption of the poppy). 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. 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 so as to bring maximum returns. Last year (2018) 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.