The Last Best Place to Trademark?

In recent years, Montana has been flooded by wealthy out-of-staters buying property. [1]  Montana’s historic economy was built on mining, timber, railroads, ranching and energy extraction; today, the economy is regularly injected by the income resident-retirees earn from their investments. Although Montanans are reportedly weary of these out-of-staters transforming their sprawling ranch lands into a retiree’s paradise, one has to wonder whether the government is taking action to protect the right property.

The waters of property ownership run deep in Montana, and Las Vegas businessman, Mr. David Lipson, has dived straight into the middle them. He recently sought to trademark a catch-phrase native Montanans claim as part of their collective identity. Originally coined as a title by author William Kittredge, “the last best place” was the subject of Mr. Lipson’s eight trademark applications.

After many public outcries, the State Senate and House Committees shored up protective legislation prohibiting the Department of Commerce from registering or enforcing a trademark of the phrase. Gov. Brian Schweitzer recently told the Washington Post that, “We just don’t like big shots coming from someplace else and claiming they own something they don’t.” Based on the Lockean belief that people are entitled to the fruits of their labour, the majority of arguments Montanans mounted against Mr. Lipson pointed to Mr. Kittredge as the creator of the phrase, and more pertinently, to the fact that Mr. Kittredge gifted the phrase to all of Montana.

With “the last best place” safely locked in the public commons, it is tempting to wonder whether the current practice of trademark law is failing, given that legislative action was deemed necessary to safeguard the public’s continued use of the popular phrase; however, it may be more helpful to consider whether other potential driving forces are behind the government’s action.

Governed by the Lanham Act in the United States, a registered trademark serves to distinguish a good from other potentially similar goods in circulation.[2] Accordingly, the trademark, or the symbol, word, phrase or device that has been legally registered by a party, may only be used to advertise that good, unless the other party’s good is not so similar to the first party’s good so as to produce confusion in the consumers.[3] In doing so, trademarks attach a coveted element of exclusivity to the property that previously did not exist. Mr. Lipson’s applications to trademark the phrase were so broad that he likely would have had a de facto monopoly on the use of the phrase.

By preventing the phrase from being trademarked, the government of Montana was restoring the waning sense of non-exclusivity to “the last best place.”  Rather than viewing the government’s legislative involvement as a necessary result of the shortcomings of trademark law, it is more useful to understand the government’s action as enabling a proxy win in the battle against commercial land developers over “the last best place.”  While the public maintains the right to access “the last best place”, their right to access the land of the last best place remains at risk.