Trademarks and the Establishment Clause

Trademarks are words, names, symbols, devices, or any combination of these that serve to inform the public of the source or sponsorship of a good or service. Trademark infringement consists of using the same or a similar trademark in a way likely to confuse the relevant audience. Trademarks are usually considered a form of personal property and are protected by all of federal statutes, state statutes, and common law doctrines. Many names and symbols of religious organizations are trademarks. Repeatedly, parent church A is left by dissidents who form a competing church B. Both A and B claim to be the true embodiment of the church’s doctrine. Both want to use the same or similar trademarks.

Courts routinely decide such disputes even though the First Amendment bars government action ‘‘regarding an establishment of religion.’’ Courts decide by looking at religiously neutral doctrines of trademark, corporate, and property law. Because of the Establishment Clause’s bar on government entanglement with issues of religious doctrine, the courts refuse to consider which group has the stronger claim to represent the religious beliefs of the church, even though the relevant federal statute bars misleading advertising and false designations of origin (Title 17, United States Code, Section 1125). The reliance on corporate law commonly gives control to the established hierarchy of the church (Purcell v. Summers, 145 F.2d 979, 4th Cir., 1944).

However, both groups may be allowed to use the same term if the court decides the term is ‘‘generic’’—that it is the common term for the good or service, as opposed to the source of the good or service. For example, ‘‘Christian science’’ was held to be generic by the New Jersey Supreme Court, but ‘‘Church of Christ, Scientist’’ was not (Christian Scientist Board v. Evans, 510 A.2d 1347, N.J. 1987). Another court refused to clarify ‘‘Christian science’’ as generic and explained the Evans case as standing on the rule that two entities may be allowed to use the same word if additional words make public confusion unlikely—for example, by adding the word ‘‘independent’’ (Christian Scientist Board v. Robinson, 115 F. Supp. 607, W.D. N. Car., 2000).

MALLA POLLACK

References and Further Reading

• Annotation, Right of Charitable or Religious Association or Corporation to Protection against Use of Same or Similar Name by Another, American Law Reports 37 (1971): 277.
• McCarthy, J. Thomas. McCarthy on Trademarks, vol. 1, section 9:02; vol. 2, chapter 12.

Cases and Statutes Cited

• Christian Science Board of Directors v. Evans, 510 A.2d 1347 (N.J. 1987)
• Christian Science Board of Directors v. Robinson, 115 F. Supp. 607 (W.D. N. Car. 2000)
• Purcell v. Summers, 145 F.2d 979 (4th Cir. 1944)

See also Common Law or Statute; Establishment Clause (I): History, Background, Framing; Judicial Resolution of Church Property Disputes; Lemon Test