The provision, written by Sen. Max Baucus, D-Mont., looks to stop the federal government from spending any money to process trademark applications for the phrase.
Baucus added the provision to the 2008 Commerce, Justice and Science spending bill that was approved Tuesday. The legislation now heads to negotiators who will hammer out a compromise with the House's version.
The controversy over the phrase began when Nevada businessman David Lipson tried to trademark it for use at his Resort at Paws Up in the Blackfoot Valley and other commercial enterprises.
Lipson does hold the trademark to the phrase “Last Best Place Catalogue.” Between 2001 and 2004, he filed eight additional trademark applications in connection with a variety of goods and services. They included meat, cookware, clothing, jewelry and more.
Former Sen. Conrad Burns, R-Mont., worked to stop Lipson's trademarks by inserting language into both the 2006 and 2007 Commerce spending bills to prevent the department from using any federal funds to process the applications.
“Notwithstanding any other provision of this Act, no funds appropriated under this Act shall be used to register, issue, transfer, or enforce any trademark of the phrase ‘Last Best Place,' ” Burns' provision stated.
Although four of Lipson's commercial trademarks had nearly been approved by the U.S. Patent and Trademark Office, those applications were suspended after Burns' provision became law. Two other applications, which had been opposed by the Montana Department of Commerce, also were suspended and two registrations were canceled.
Lipson responded by filing a civil lawsuit through his company Last Best Beef LLC against the director of the trademark office and the trademark commissioner.
The U.S. District Court for the Eastern District of Virginia sided with Lipson last fall. The court ruled that Congress had failed to explicitly suspend provisions of trademark law, known as the Lanham Act, with respect to the phrase. That ruling has been appealed; the appeal is pending.
Baucus and his legal counsel drafted language that would comply with the court ruling while still preventing the trademark, his office said. They say a simple word change - from “of this Act” to “of law” - will allow the measure to meet the court's requirement that Congress specifically mention trademark law in relation to the phrase.
The Montana Department of Commerce opposed only two of the trademarks because it didn't learn about the other six in time to oppose them. If the applications are granted, the state agency would consider taking further action, such as a lawsuit.
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