A few months ago, in June, Pride Month was observed all across the globe. Amidst the raging pandemic due to the novel coronavirus, the usual forms of pride walks, meetings and demonstrations were replaced almost in all the countries by video conferences, telephonic discussions, webinars to raise awareness, and the like. The year 2020 also marked the 51st anniversary of the Stonewall Riots, the eponymous epoch that brought the rights of the LGBT (lesbian, gay, bi-sexual and transgender) community to the fore in the United States, and helped surge similar movements elsewhere in several places over a period of time. For starters, one might normally notice the colourful walls, merchandises and of course, the quintessential pride flag during the month of June.
The pride flag, alternatively referred to as the rainbow flag, was designed by artist Gilbert Baker, who drew heavily from the colours of the rainbow. In 2015, the New York Museum of Modern Art placed the rainbow flag on an exclusive list of the most internationally recognized symbols and emblems, on the lines of the Google Maps Pin and the International Symbol for Recycling. The flag has been subject to a variety of interpretations and adaptations by individuals, non- profits and body corporates. The current article, therefore, thus seeks to examine the silhouettes of trademark and copyright laws in the European and American context, to ascertain if the flag could be accorded due protection under the current IPR regime.
PROTECTION UNDER THE EUROPEAN TRADEMARK LAWS
A reference to Article 4 (b) of the European Union Trademark Regulation, 2017 (EUTMR) would reveal that a colour combination can be registered as a trademark, if the subject matter of protection follows the lines of clarity and preciseness to grant protection to the proprietor. This has further been corroborated by the Court of Justice of the European Union (CJEU) in Ralf Sieckmann vs. Deutsches Patent-und Markenamt, – stating that the subject matter of protection should be represented in an “intelligible, durable and objective manner”. Furthermore, in conformity with Article 7(1)(a) of the EUTMR, the European Union Intellectual Property Office (EUIPO) needs a nexus between systematic representation and uniform presentation of colour schemes on the part of the proprietor.
Pursuant to a concise and clear representation of the subject matter, Article 7(1)(b) of the EUTMR demonstrates the idea of “distinctiveness of the colour combinations” to be considered for a trademark. In order to be distinctive, the colour combination must not be merely acceding to consumer requests, or outright technical in nature, it ought not to be used to indicate “a particular characteristic of the goods”. In addition, a colour combination is not distinctive and subject to refusal upon examination, if “the existence of the color combination is traced in the existing market”.
Considering the aforementioned provisions, the pride flag stands a chance for registration as a trade mark, if it is represented in a systematic and orderly manner, along with the fulfillment of other requirements that are set by the EUIPO. However, on closer reading, the flag has been subject to myriad interpretations and adaptations, which leaves question marks and room for deliberation on its idea of “distinctiveness”.
A cursive glance at the decades-strong history and significance of the pride flag begs the exploration of Article 6ter of the Paris Convention (PC). The article in spotlight excludes from the baggage of trademark registration, the kinds and types of “imitations from a heraldic point of view”, which comprises of armorial insignia, flags, official symbols of Unions on the lines of “control, composure and warranty”. Two key issues emerge in this regard: firstly, the pride flag does not enjoy protection either as a flag or a heraldic symbol in the WIPO database. Proponents for the idea of protecting the pride flag might propel the ILGA-Europe, which protects and represents the rights of the community across Europe, to sign some sort of an agreement.
Previously, the International Olympic Committee has signed the Nairobi Treaty on the Protection of the Olympic Symbol, 1981 to prevent the usage of the “five-ring Olympic symbol” for any third-party commercial purposes. Secondly, a few of the Member States of the WIPO still find themselves embroiled in the archaic practice of state-sponsored homophobia. Some of these States go to the extent of forcing penal servitude and death penalty on people in same-sex relations. Hence, the idea of registration of the pride flag and the pride colours is out-of-sync with Article 6ter of the Paris Convention, making its chances for registration highly unlikely.
There exist chances of such attempts of registration being opposed by the community themselves, since the pride colours were originally meant to represent the idea of “universal sexual freedom”, and one that must not be “commercialized”.
POTENTIAL COPYRIGHT CLAIMS IN THE U.S. JURISDICTION
It must be taken into account that Baker had designed the original version of the pride flag in San Francisco in 1978. This actually gives ground to a holistic contention that the pride flag could be subjected to copyright laws in the U.S.A., notably the Copyright Act, 1976. Baker’s version of the pride flag is realistically “an original work of authorship fixed in a tangible medium of expression”. It gives reason enough to presume that Baker is the first-chain owner of the copyright for the pride flag, since there have been multifarious additions and ramifications to his original vision. But, no claims of copyright infringement have been sounded out against such dynamic modifications, which proliferate the LGBTQ+ driven interest markets.
Even the LGBTQ+ communities in the U.S. have made sizeable additions to the pride colours. The most prominent among them is the five-colored chevron designed by graphic designer Daniel Quassar in 2018. Such a redesign was done with the motive to boost the ideas of “inclusivity and progress”. Baker had envisioned his flag to be synonymous with the freedom from any moral right and wrong. In fact, in his fight against the advocacy organization that attempted at a trademark registration for the pride colours, Baker approached Matt Coles, who helped in the prevention of such registration and avoidance of dubious commercial practices thereof, in relation to the colors of the pride.
Context overarches and defies legality, sometimes. While those in favour of wanting to protect the rights of the community through registration of the pride colours have sufficient rationale, a larger section of the community sees it as a demonic attempt to monetize the whole suffrage. This is actually the most determining factor in case of the pride colours: its absolute freedom of usage by the public helps to reinvigorate and emphasize an idea of belief that the flag symbolizes. Albeit, the ever-growing use of the colours do stand a chance to become run-of-the- mill and defeat the purpose of the movement in the near future. If one were to look at rainbow flags in Italy, it could be inferred either as symbols of peace, or as the visual strength of the sexually marginalized. Therefore, the issue of whether the pride colours must be left unprotected under the current regime of intellectual property rights is a contentious one.
ABOUT THE AUTHOR
Pranoy is a fourth-year student at National Law University and Judicial Academy, Assam. He is currently engaged as a Research Assistant with the Center for the Study of Law and Culture, Columbia Law School. He has an avid interest in the areas of Intellectual Property, International Humanitarian Laws, Gender Justice Laws and Dispute Resolution. He can be reached at firstname.lastname@example.org.