Incontestable
Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
June 2010 Issue

Unregistrable


Reign of Terror and TM

One June 20th, the Showtime® original series The Tudors ended its lusty four−year run with a riveting final episode showing Henry VIII at the end of his days, mourning his lost youth while reviewing in his mind’s eye the many travails and offenses of his long and bloody reign.  The eighth Henry is, of course, most infamous for his fickle matrimonial habits.  The legendary “Six Wives of Henry VIII” were, in order of appearance: Catherine of Aragon (Spanish princess and daughter of Ferdinand and Isabella of Columbus fame) of whom Henry tired after their twenty−year marriage failed to produce a male heir; Anne Boleyn, the cagey courtesan who insinuated herself into the King’s affections as Henry’s passions for Katherine waned, but whose own failure to produce a son and other palace shenanigans cost her her head; Jane Seymour, who delivered Henry a much desired prince, Edward, but who did not survive childbirth; Anne of Cleves, the Germanic princess to whom Henry was betrothed sight unseen in the 16th century precursor of Match.com®, but who did not prove to be His Highness’s cup of tea when she ultimately arrived in Merry Ol’ England; Catherine Howard, a teenage bride thirty years Henry’s junior who reinvigorated the ailing king for a spell, but whose wanton past and wandering proclivities proved her undoing; and last but not least, Katherine Parr, a widow and Protestant reformist reluctantly forced to wed the corpulent, age−ravaged monarch, who kept her head by keeping her wits about her as rivals plotted her demise.  Their fates, while difficult to keep straight, can perhaps best be remembered by the clever mnemonic mantra: “died, beheaded, died; died, beheaded, survived.”

But while the infamous King is best known for dispassionately dispatching wives, noblemen, and scholars such as Thomas More to the chopping block, his reign was also noteworthy for his affinity for, of all things, trademarks—more particularly, a logo that identified his regime and distinguished Henry and his court from lesser noble houses.  The Tudor Rose was festooned throughout Henry’s court in the more than fifty palaces built during his reign at ruinous cost to the English treasury.  Like a modern sports logo, this colorful badge adorned the uniforms of all the King’s men, instantly marking them as members of Team Tudor.  The Tudor Rose was the creation of Henry VIII’s father, the first Henry Tudor (Henry VII), whose exploits on the battlefield ended the War of the Roses between the House of Lancaster (whose badge was a red rose) and the House of York (whose badge was a white rose).  On his marriage to Elizabeth of York, he joined the York’s white rose with the red rose of Lancaster to create the iconic badge of a white rose superimposed on a red blossom.

Had Henry lived today, he almost certainly would have exploited the commercial value of the Tudor Rose through exclusive licensing and other sponsorship arrangements.  We would no doubt see Tudor Rose insignias on a vast kingdom of merchandise, such as ball caps, jerseys, and beer holders, and the commercial value of exploiting the royal symbol would command a king’s ransom. Henry would also likely have brokered the naming rights to his assortment of royal residences. Imagine a Harrods’s Hampton Court or BP Windsor Castle.  But back in the 1500s, marketing opportunities had to take a back seat to more pressing concerns—nullifying marriages by whatever means necessary (including the executioner’s ax), founding the Church of England by sheer force of personality, brokering and breaking treaties with his French and Spanish nemeses, waging wars abroad, suppressing insurrections at home, and warding off the plague.

Yet through all the chilling palace intrigue, the Tudor Rose stood as a vibrant symbol of promise and hope.  Following Henry VIII’s death, his second daughter, Elizabeth, eventually ascended to the throne after short reigns by her half siblings, the boy-prince Edward and “Bloody” Mary I.  Elizabeth’s forty−year reign under the banner of the Tudor Rose is remembered as England’s Golden Age, which brought prosperity and stability to England, and helped forge the country’s sense of national identity.  Not a bad legacy for a monarch, or a logo.

Of course, unlike in today’s freewheeling commercial environment where trademark counterfeiting and “ambush marketing” run rampant, especially at the 2010 World Cup® (where a bevy of orange−clad Dutch blondes were criminally charged for an unauthorized marketing stunt), no one in Henry’s realm would dare rip off the Tudor Rose.  After all, sticking one’s neck out by infringing that royal symbol could cost one a head.