Antoinette M. Tease Montana Patent

The Saga of the Last Best Place

In 1988, the Montana Historical Society published an anthology of stories about Montana edited by William Kittredge and Annick Smith. The anthology is beloved by Montanans and includes writings from authors such as Meriwether Lewis and William Clark, Charlie Russell, Wallace Stegner, A. B. Guthrie, Jr., Ivan Doig, and Norman Maclean. The selections include stories about Native Americans, homesteaders, miners and fly fishermen. As stated by the editors, “This is a Montana book. There are many voices here but they all speak about those important things that have made Montana unique.” Over time, the phrase “The Last Best Place” has become synonymous with the state of Montana.

In 1992, David Lipson, a multimillionaire from Las Vegas and former chairman of Frederick's of Hollywood, began filing trademark applications for THE LAST BEST PLACE. To date, Lipson has filed ten federal trademark applications for THE LAST BEST PLACE (or similar marks), and he has obtained four registrations (one of which has expired for failure to file a renewal affidavit). The three live registrations cover hotel and lodge services, travel information services, and retail mail order services featuring products from the state of Montana. The pending applications cover real estate and land development services, clothing, retail store services, meat and beef, and kitchen items.

Some time in 2005, Montana governor Brian Schweitzer became aware of Lipson's trademark filings and attempted to persuade Lipson that the mark THE LAST BEST PLACE belonged to the state of Montana; however, neither the state of Montana nor any resident of Montana had ever filed a federal trademark application

for that mark. In any federal trademark application, there is a 30-day period in which third parties may file an opposition. Extensions of time may be granted, but the request for an extension must be filed within the 30-day opposition period. In the case of Lipson's trademark filings, the opposition periods had passed in many of the pending applications, leaving the state without recourse.

The state was also at a disadvantage to the extent that it could not prove use of the mark in interstate commerce—in other words, usage of the mark as a trademark. In order for the opposing party to prevail in an opposition proceeding, the opposer must prove that it has priority of use, that is, that it has used the mark in interstate commerce in connection with the goods and/or services covered by the application before the applicant's date of first use. Furthermore, the fact that a mark is geographically descriptive (such as the word “Montana”) is a valid basis for an opposition, but the fact that a mark has become “synonymous” with a state is not.

Nor would the state find support under copyright law. Titles are not generally protectable under copyright law, and the phrase “The Last Best Place” is, after all, the title of a book.

Left without recourse under current law, Governor Schweitzer turned to Montana's Senator Conrad Burns for help. Senator Burns introduced an amendment to the appropriations bill on September 9 that stated that no funds appropriated under the act could be used to register, issue, transfer, or enforce any trademark of the phrase “LAST BEST PLACE.” President Bush signed the bill on November 22, making it law. Thus, the phrase “THE LAST BEST PLACE” has been bequeathed to Montanans for posterity.
Patent Law for the New West
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© 2005 Antoinette M. Tease, P.L.L.C. All Rights Reserved.

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