Jay Critchley's spirits flagged last year when the U.S. Patent and Trademark Office refused to register the proposed logo for his Old Glory Condom Corp., saying the unfurled condom colored like a U.S. flag would "scandalize" the public.
Old Glory will yet wave - thanks to an appellate ruling that the red, white and blue condom-pennant logo is "in no way" scandalous and that Critchley's apparent "belief that the use of condoms is a patriotic act" should be saluted.
Critchley's condoms come in red, white or blue, and the packets are printed with the logo and the Old Glory Pledge: "We believe it is patriotic to protect and save lives . . ." The package also notes that part of the profits go to AIDS-related services.
Jay Critchley's spirits flagged last year when the U.S. Patent and Trademark Office refused to register the proposed logo for his Old Glory Condom Corp., saying the unfurled condom colored like a U.S. flag would "scandalize" the public.
But Old Glory will yet wave - thanks to an appellate ruling that the red, white and blue condom-pennant logo is "in no way" scandalous and that Critchley's apparent "belief that the use of condoms is a patriotic act" should be saluted.
Rachel Blue, the patent attorney who rejected the registration request, said yesterday that the reversal would not be appealed.
Critchley, an artist and AIDS activist from Provincetown, Mass., hailed the decision, filed last week by the Trademark Trial and Appeal Board and made public yesterday.
"The real scandal is not my trademark, but the fact that the examining attorney was more scandalized by a trademark than by the AIDS crisis to which I sought to respond," Critchley said in a prepared statement.
David Cole, a Georgetown University law professor and civil liberties lawyer who represented Critchley, also praised the reversal. He said it would have been unconstitutional to reject the trademark on the grounds that it would offend the public or desecrate a national symbol.
"The board would be essentially directing the politically correct and politically incorrect ways the flag could be used, and the First Amendment stands for the proposition that the flag is everyone's symbol and that they can use it in whatever way they deem appropriate," Cole said.
Others said the flag deserves better treatment.
"The flag is not ever supposed to be used for commercial purposes," said Lew Wood, a national spokesman for the American Legion. "There are varying degrees of abuse and desecration, and I would say this is at the very bottom. This has nothing to do with the flag or patriotism."
Bill Smith, of the Veterans of Foreign Wars, agreed. "The use of the term of Old Glory and the flag superimposed on a condom is tasteless and tacky," he said.
Critchley's condoms come in red, white or blue, and the packets are printed with the logo and the Old Glory Pledge: "We believe it is patriotic to protect and save lives . . ." The package also notes that part of the profits go to AIDS-related services.
Controversy over Critchley's condom distribution company began last year when he tried to register his logo, which was conceived as artwork for a 1989 exhibit in Cambridge, Mass. A company can use a proposed trademark without having it formally registered, but registry gives the owner legal protection if another company attempts to use it.
Critchley noted at the time that dozens of product logos incorporate elements of the American flag and that condoms with such names as Love Gasket and Sexplorer had not been found scandalous by the trademark agency.
Nonetheless, Blue said in her ruling last May, "Despite the admirable intent displayed in the applicant's desire to prevent the spread of sexually transmitted diseases, the majority of the public would still be offended by the use of the flag to promote items associated with sex."
While recognizing that some might be offended by the Old Glory logo, the three-member appellate panel praised Critchley's apparently sincere attempt to fight AIDS.
Cole said that Critchley's logo was intended to be humorous. "Through the use of humor, he hoped to get people beyond their discomfort - to get to the point where you can save lives by promoting safe sex," Cole said.
Old Glory will yet wave - thanks to an appellate ruling that the red, white and blue condom-pennant logo is "in no way" scandalous and that Critchley's apparent "belief that the use of condoms is a patriotic act" should be saluted.
Critchley's condoms come in red, white or blue, and the packets are printed with the logo and the Old Glory Pledge: "We believe it is patriotic to protect and save lives . . ." The package also notes that part of the profits go to AIDS-related services.
Jay Critchley's spirits flagged last year when the U.S. Patent and Trademark Office refused to register the proposed logo for his Old Glory Condom Corp., saying the unfurled condom colored like a U.S. flag would "scandalize" the public.
But Old Glory will yet wave - thanks to an appellate ruling that the red, white and blue condom-pennant logo is "in no way" scandalous and that Critchley's apparent "belief that the use of condoms is a patriotic act" should be saluted.
Rachel Blue, the patent attorney who rejected the registration request, said yesterday that the reversal would not be appealed.
Critchley, an artist and AIDS activist from Provincetown, Mass., hailed the decision, filed last week by the Trademark Trial and Appeal Board and made public yesterday.
"The real scandal is not my trademark, but the fact that the examining attorney was more scandalized by a trademark than by the AIDS crisis to which I sought to respond," Critchley said in a prepared statement.
David Cole, a Georgetown University law professor and civil liberties lawyer who represented Critchley, also praised the reversal. He said it would have been unconstitutional to reject the trademark on the grounds that it would offend the public or desecrate a national symbol.
"The board would be essentially directing the politically correct and politically incorrect ways the flag could be used, and the First Amendment stands for the proposition that the flag is everyone's symbol and that they can use it in whatever way they deem appropriate," Cole said.
Others said the flag deserves better treatment.
"The flag is not ever supposed to be used for commercial purposes," said Lew Wood, a national spokesman for the American Legion. "There are varying degrees of abuse and desecration, and I would say this is at the very bottom. This has nothing to do with the flag or patriotism."
Bill Smith, of the Veterans of Foreign Wars, agreed. "The use of the term of Old Glory and the flag superimposed on a condom is tasteless and tacky," he said.
Critchley's condoms come in red, white or blue, and the packets are printed with the logo and the Old Glory Pledge: "We believe it is patriotic to protect and save lives . . ." The package also notes that part of the profits go to AIDS-related services.
Controversy over Critchley's condom distribution company began last year when he tried to register his logo, which was conceived as artwork for a 1989 exhibit in Cambridge, Mass. A company can use a proposed trademark without having it formally registered, but registry gives the owner legal protection if another company attempts to use it.
Critchley noted at the time that dozens of product logos incorporate elements of the American flag and that condoms with such names as Love Gasket and Sexplorer had not been found scandalous by the trademark agency.
Nonetheless, Blue said in her ruling last May, "Despite the admirable intent displayed in the applicant's desire to prevent the spread of sexually transmitted diseases, the majority of the public would still be offended by the use of the flag to promote items associated with sex."
While recognizing that some might be offended by the Old Glory logo, the three-member appellate panel praised Critchley's apparently sincere attempt to fight AIDS.
Cole said that Critchley's logo was intended to be humorous. "Through the use of humor, he hoped to get people beyond their discomfort - to get to the point where you can save lives by promoting safe sex," Cole said.