Missy Elliott, an American rap star, recently withdrew her line of Respect ME Adidas sportswear in Denmark after Queen Margrethe II of the Danish Royal Family complained that the logo on the clothing looked substantially similar to her royal monogram.¹

Adidas Corporate PR Manager Anne Putz told AllHipHop.com in an interview that "Adidas has never intended to copy the crown or any other symbol of the royal family in Denmark or in any other country."²
Furthermore, it was emphasized that Missy Elliott had created the logo herself.³

No complaint was filed and no legal actions were taken by the Danish royal family. Only a threat of a lawsuit was foreseeable. Without a fight, Missy Elliott and Adidas just walked away. From a legal perspective, was the decision right? I believe so.

To Respect or not to Respect the Queen's Mark

Queen Margrethe II became queen of Denmark in 1972. Her mark consists of a crown followed by the capital 'M'. At the very bottom is the number and letter "2 R" in capital cursive font. 'M' is for Margrethe and the number '2' indicates that she is the second queen in Denmark with the first name Margrethe. The 'R' is the Latin word for 'Regina', which means "Queen".

The "Respect M.E." mark contains a crown, which is placed directly above the word "RESPECT". Following it are the initials "M.E." in capital cursive letters. The mark was developed on April 2004 and the clothing was launched globally on November 2004. The crown was symbolic for the claim that Missy Elliott is the Queen of hip-hop. The "M.E." is an abbreviation for Missy Elliott.

The two marks are similar to the extent that both contain an image of a crown covering either letters or numbers. Although the initials at the very bottom of both marks differ, they are similar in that they both use cursive. As to overall shape, the Queen’s mark is more vertically stretched out. Missy Elliott’s mark is more square-like. On the very top of the "RESPECT M.E." crown, instead of a cross which is used in the Queen’s mark, the Adidas mark is used. It is difficult to say how the Danish court will weigh these similarities and differences.

However one thing is for certain, the Danish Court will most likely provide more protection to State emblems since the use or registration of such similar or identical marks is not only explicitly forbidden under Danish trademark law and the Paris Convention but also there is a very strong public policy interest involved. When marks are deeply embedded with public and government interests, the courts will increase the scope of protection and overall strength of that mark. The social value and protection State emblems are given by law and society probably played a large factor in Adidas’ decision to pullout the "Respect M.E." line of clothes.

Freestyle Rap Battle with a Danish Twist

The Trade Marks Act of Denmark⁵ does offer protection to trademarks that have not been registered. For example under Section 3, trademark rights can be established through continuous "commercial use."

In addition, Section 14(iii) forbids the registration of trademarks which "include badges, emblems, and escutcheons which are of public interest." Therefore, the Queen's crown logo need not be registered in order for it to be protected under Danish trademark law.

Besides being protected under the domestic laws of Denmark, the Queen’s crown logo is also protected at an international scale under the Paris Convention.⁶ According to Article 6ter of the Paris Convention, countries which are a party to the convention (this includes Denmark and the United States) "agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view." (emphasis added).

Keeping the above laws in mind and the strong international acceptance of forbidding the registration and use of marks resembling State emblems, a Danish court in a hypothetical situation in which it hears a trademark suit brought by the Queen against Adidas may explore the public policy reasons for offering protection to government marks. The inquiry may ultimately determine the outcome of the case and thus favor the Queen.⁷

Why should we protect government insignia?

Before answering the above question, it is first helpful to understand the policy objectives of trademark law. There are two public policy rationales that dominant trademark law. Firstly, trademark law serves to protect consumers from confusion as to the origin of goods or services. Consumers should have the right to purchase the products or services that they actually want. Secondly, the "protection of trademarks is desirable... because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation."⁸

Although trademark law is primarily concerned with regulating commercial activity it also encompasses other societal interests. For example marks that are scandalous, immoral, or disparage a religion or ethnic group are not afforded legal protection.

In most countries, like Section 14(iii) of Denmark's Trade Marks Law or 15 U.S.C. 1052(b) of the United States, insignias of the government cannot be registered and protected. Why offer protection to government insignia when governments are not in the “business” of marketing goods and services like corporations?

There are a number of justifications for protecting government-related symbols.

Firstly, the government and society as a whole has a legitimate interest to encourage feelings of patriotism towards the State and country. One of the best ways of achieving this goal is through symbols. Like the old saying goes, "a picture says more than a thousand words." For example the seal of the Department of Justice creates a sense of authority, justice, and pride in the rule of law in the United States.

Secondly, the use of government symbols by private individuals sends the message to the viewer that the source of the goods or services has government authority. Take for example the case where an individual uses the seal of the Food and Drug Administration (FDA) on her drug products. This could be particularly dangerous to the public because some consumers may wrongly believe that the FDA approved the drug, thereby wrongfully assuming that the drugs are safe for medical use.

Thirdly, it may be argued that these symbols belong to everyone and no single individual can claim ownership. Government symbols find their roots in a country's history and culture.

Fourthly, since the government is sovereign it would be ironic if a private citizen could not only register a government seal but also prevent the government from using it. If this were to happen, the government would be hindered in executing all of its functions. Government seals would constantly change due to lawsuits brought by private citizens. People would be confused as to whether the entity acting was in fact the government. In sum, it would be chaotic. You could just imagine people saying, "I didn’t know it was the government."

Doesn't the Queen want to be "hip" and "get with the times"?

The Danish monarchy has a history of more than 1000 years. Although the Queen does not hold a political office in Denmark and she "cannot independently perform political acts"⁹, nevertheless she is an important representative figure of Denmark.¹⁰ Her primary duty, like with other royal families across the world, is to "represent [her country] abroad and to be a figurehead at home."¹¹ She is responsible for performing the largely traditional and ceremonial function of signing all Acts of Parliament. Just by reading Queen Margrethe's motto, which describes her as "God's help. The people's love. Denmark's strength," it is clear that her place in Denmark is an important one. To put it simply, she is a "national treasure" to be respected, glorified, and protected. Queen Margrethe's recognition of the crucial role she plays in Denmark prompted her to complain to Adidas about Missy Elliott’s "Respect M.E." mark.

As previously discussed, the rationale for protecting the Queen's royal monogram is deeply grounded in the first justification for protecting government insignia, that being the legitimate interest to promote feelings of patriotism towards the State and bringing together the nation. Furthermore, these interests are tied to a nation’s instinct of self-preservation.

It may be difficult for Americans to understand the cultural importance of a royal family, since we have none. Some may shun the idea of a royal family because of the embarrassing scandals of the British Royal Family that have been floating in the press for the past few years. Others may say that since we live in a democracy there is no place for royalty. Nevertheless, in Denmark the perception and long history of the Queen is important to the people of Denmark and this cannot be ignored. Therefore, it is not surprising why Adidas walked off the field before the game had even started.

Footnotes:

1. The author is deeply grateful for the help of Hanne Flensmark, Legal Adviser of the Danish Patent and Trademark Office and Professor Palle Bo Madsen of the University of Aarhus School of Law. Any errors in this article solely belong to the author.
2. http://www.allhiphop.com/hiphopnews/?ID=4063
3. Id.
4. For a visual comparison, you can see Missy Elliott’s mark at http://www.adidas.com/campaigns/missy/ and and the Queen’s monogram at http://www.kongehuset.dk/artikel.php?dogtag=k_dk_familien_dronningen
5. The English version of the Danish Trade Marks Act is available online at the Danish Patent and Trademark Office website.
6. http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#P155_22332
7. It is recognized that in this hypothetical situation, the Queen may also seek an injunction under the Marketing Act, in which case the Maritime and Commercial Court would have jurisdiction. Other causes of action outside the law of trademarks may be available to the Queen.
8. Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 198 (1985).
9. http://www.kongehuset.dk/artikel.php?dogtag=k_en_fam_oue. Denmark is a Constitutional Monarchy.
10. http://www.um.dk/Publikationer/UM/English/QueenAndHerCountry/QueenAndHerCountry.pdf
11. Supra Note 4.