New York’s state tourism board is seeking to reclaim their “I heart NY” slogan. (link from michele) According to the article, the slogan was developed for them pro bono by graphic designer Milton Glaser in the early 1970s. It was used prolifically as a mark; then they let their registration lapse and stopped policing it; and then everybody and their sister started selling products with “I heart NY” on them. Over the last few years the tourism board (“Empire State Development”) realized the “error” (read: revenue stupidity) of their non-policing ways so they renewed their registration and began policing the mark.
How did they begin? By threatening to sue Mr. Glaser (the original graphic designer, remember, who donated the logo pro bono), who had, after 9/11, designed an “I heart NY More Than Ever” logo. He was naturally outraged.
random aside: My browser (Firefox 2.0/Mac 10.5) displayed the “heart” ♥ on the browser bar (generated by the title tag) but on the headline text itself and throughout the rest of the body of the article, I saw only a junk ascii character. Looking at the source, they used ♥ in both the title and throughout the body. No problem with display (either of the NYT article or this post) in Safari. Apparently, this is some kind of Firefox rendering problem. Hmm.
… Anyway, just a note on terminology. Here again we have people talking about “fakes”, which is the accepted jargon within trademark circles for unlicensed products. Note, however, that they’re not “fake” in any way that ordinary people would understand fake: It’s not like the t-shirt or mouse pad or bumper sticker is not really a t-shirt or mouse pad or bumper sticker. “Fake” means “unauthorized” — that the NY tourism board didn’t license the use of their registered mark to the t-shirt, mouse pad, or bumper sticker maker.
Well, “unlicensed” or “unauthorized” might arguably be serious when people are actually paying good money for the brand. Traditionally marks are meant to help consumers identify the source of a good or service, so that they can choose to pay top dollar for goods and services with good reputations for high quality. Quality might be quality of components — well-made, true cotton and not poly-blend, etc. Or it might be more money than the bare physical elements of the product are worth, for instance, as in paying top dollar for a Gucci purse. Here we’re getting into more ephemeral attributes and qualities: quality of design, maybe, and of course “authenticity”.
But how does that apply to “I heart NY”? Slogans can be marks; you can associate a slogan with a particular good or service. “I can’t believe it’s not butter.”
But, again, how does any of this relate to the “Empire State Development” or the state government of NY? Do we really believe that any consumer ever associated “I heart NY” with the mark registrant — “Empire State Development” or maybe the state government of New York?
For most people, the statement “I heart NY” is just that: a statement of one’s affection for “NY”. To the extent that it served as any kind of brand identity, it was tied to something like “New Yorkness”, if anything. The fact is that this slogan was never associated with “Empire State Development”, the mark’s registrant. This particular marketing slogan was tied to something incredibly broad and nebulous: “New York” represents at least two geographic regions (city and state), at least two governmental entities (city and state), and, arguably, a “state of mind”, as the song goes. Basically a type of regional patriotism. That was, in fact, its genius, but that’s also what makes nationalistic slogans kind of an odd fit for trademark law.
Well, the article also talks about the registered mark symbols — a ™ or ® (circle-R). The presence of the ™ or ® certainly implies, to the observant consumer, that there is some mark involved, and the savvier consumers understand that such marks (athletic clubs, tourism slogans) are frequently licensed rather than actually applied to goods made by the mark-holder.
So, in the case of an unlicensed bumper sticker maker who added a ™ or ® symbol, we could imagine that some consumers actually notice the diminutive ™ ® symbol on a product, and then that they might understand the slogan to be a mark, and then that they might understand that the slogan represents or is from the state tourism board, and finally that they might understand that the state tourism board licensed that slogan to appear on multiple products, but not all products.
Well, I think that’s a series of questionable assumptions. But let’s concede that the presence of the “I heart NY” slogan, or the slogan with a ™ or ® symbol, on an unlicensed product, might confuse a consumer about whether or not the slogan was officially licensed.
Which means, what? There was no “quality” judgment implied or attached to “I heart NY”, so we’re just looking at that nebulous “authenticity”. Maybe “I heart NY” suggested to consumers that the good was authentically “New York”. In that case, in what sense is an officially licensed t-shirt vendor less “authentically” New York than an unlicensed t-shirt vendor?
So there are real source identification problems for this mark. Marks are supposed to serve as a marker for quality of goods, so that consumers can reliably recognize the source of goods or services. This slogan was brilliant at capturing people’s attention and “branding” “New York”, but not as a particular source of goods or services. (Or, to the extent the “NY” brand attached to goods and services, it wasn’t the goods and services that the mark was attached to!)
Marshall Blonsky, semiotics professor at Parsons the New School for Design, suggests that, aside from any conceptual problems one might have with tourism campaigns that brand a nebulous thing like a “state”, the mark is basically generic now:
“Oh, boy! That’s very odd!  They’re trying to re-proprietize this thing.” The brand is battered, Mr. Blonsky said. “What was absolutely original and therefore thrilling in 1977  is now an empty signifier, nothing in it, no communication, zed, zero. It moved from poetry to banality, from red to pink, like a coin that has been rubbed smooth from so much usage.
I’m not sure that it’s wholly empty of meaning semiotically, but I imagine it has been effectively genericided.
Anyway, aside from pondering these imponderables, I’m not too upset by this development. What, I wonder, will this campaign ultimately do? Basically it’s a revenue scheme for Empire State Development. Okay, fine. I support the efforts of NY state agencies to drum up tourism, and to make money off of it that they can then pour into NY’s arts scenes. So developing a popular slogan and licensing it to that end is a reasonable result, as far as I’m concerned. Even if I don’t love the means, and I can’t help but observe that the right to make money for your state tourism agencies is pretty far afield from the consumer protection purposes of trademark law.
Well, at least this action by NY state officials is far less harmful than other activities fellow state officials get up to. For example, killing people in a hail of bullets for leaving a club while black.