It's not just a national flag, it's also a federal trademark, a smokers'-rights group discovers

by Colby Cosh

IT must have seemed reasonable enough to have the emblem of the Canadian flag on the Web site of Forces Canada, the domestic branch of an international smokers'-rights organization (www.forces-cdn.com). Forces, a strident, grassroots group which provides news and intellectual ammunition to fans of tobacco, has branches in six countries, all with their own Web sites: they have to distinguish them somehow. But sometimes we must distinguish between what is ostensibly reasonable, and what is lawful. As Forces found out recently, there are certain esoteric limits to how Canadians can use their own flag.

Pat Hagen, the president of Forces Canada, received a polite telephone call on January 9 from Jan Ovens, a representative of the Federal Identity Program (FIP) of the Treasury Board of Canada Secretariat. The mandate of the FIP is to guard against unsuitable or confusing uses of the "flag symbol"--which, it turns out, is trademarked by the federal government, and which is very much like the familiar national flag of Canada.

In an e-mail follow-up, Ms. Ovens explained the policy to Ms. Hagen. "The flag symbol is a global identifier of the Government of Canada. It is used to identify federal institutions and is protected under the Trademarks Act...The flag symbol was approved and entered as an official mark of the Government of Canada on the Trademarks Register held by the Canadian Trademarks Office, which is part of the Canadian Intellectual Property Office at Industry Canada, on 30 September 1987." Because Forces was using this mark, it was asked to take "immediate corrective action"--i.e., take the flag off its Web site at once.

The group complied, although Gian Turci, a former head of Forces Canada who has since moved to Italy, defiantly put a Maple Leaf banner on the Web site of Forces Italy. "You may find that many other sites, in the near future, will be in violation of your law," he wrote to Ms. Ovens. "Please report to the Canadian Government, and tell them to take that law and shove it, together with the anti-tobacco frauds."

Already this brouhaha is blossoming into an urban legend, one which has Canadians hearing different versions of the story on the Internet and wondering whether they are within their rights to display the national flag. Shawn Dearn, a spokesman for the Treasury Board of Canada Secretariat, says not to worry. There are two major points he wants to convey to Canadians.

One is that the "flag symbol" covered by the Trademarks Act is not the same as a printed representation of the Canadian flag itself. "The national flag of Canada is two red stripes, with a white square in the middle containing an 11-pointed red maple leaf," explains Mr. Dearn. "People can display this flag, in print, however they like. The flag symbol of the Canadian government is just the two red stripes and the 11-pointed maple leaf. There is no white square." On a white background, the flag and the flag "symbol" would seem to be almost indistinguishable, if not completely so without some sort of border surrounding the flag. Nonetheless, it is only the "symbol" which the government places restrictions on.

Mr. Dearn's second point is that a use of the flag symbol is not deemed to violate the government's trademark unless there is potential confusion between the user and a government agency. The obvious similarity between Forces Canada and the Canadian Forces is obvious; one can imagine how a particularly clueless foreigner might wonder what our army was doing arguing about the health effects of nicotine. In fact, the original complaint to Ms. Ovens came from a Department of National Defence employee who discovered Forces Canada while doing a Web search on the Canadian Forces. "We're not trying to be anti-patriotic here," says Mr. Dearn. "We encourage Canadians to fly the flag freely and proudly. Anyone can use it as long as it's not confusing people."

This strange story was broken on the World Wide Web by an amateur journalist and "web-logger" named Lawrence Garvin, who lives near Richmond, Ont., just outside Ottawa. An insurance appraiser by trade, Mr. Garvin dissects the daily news at his site, freshhell.blogspot.com. Concerned about the possibility of "selective enforcement" of an obscure trademark rule against an anti-government Web site, he spoke to officials and was somewhat mollified. "I'd chalk it up as a minor tyranny," he says. "It's hard to take it too seriously, and it is true that someone with a shaky grasp of Canada might get confused. But it seems like another example of how regulations are crafted, with deliberate obtuseness, to leave wiggle room in the face of a worst-case scenario."