This seems like a lighthearted, amusing story (and yeah, it is), but it also reveals an ongoing Constitutional issue. Let’s start with the story from this week’s issue.
Shaved
Mike DiGiacomo partnered with his brother and sister to open The Barber Shop Blackstone in Omaha, Neb. Despite the barber pole at the entrance, it is very obviously not a barber shop: it is a bar, named to honor the DiGiacomos’ father, who was: his shop was located in the very building their speakeasy is in. The state has objected because it’s not a licensed barber shop — which the state regulates — and ruled it cannot use that name or the “trademark” barber pole. The trio filed a lawsuit against the state with the aid of the University of Nebraska College of Law’s First Amendment Clinic, arguing that the Nebraska Barber Shop Act violates their free speech rights by restricting their “non-misleading” commercial speech and threatening “ruinous fines and even jail time.” A U.S. District Court judge denied their motion for a preliminary injunction, so the DiGiacomos are playing it safe: for now, they have renamed the bar to The CENSORED Shop Blackstone. Meanwhile, the non-profit Institute for Justice is joining the case to appeal that 36-page ruling. “It’s outrageous,” says the I.J.’s Robert McNamara. “People don’t assume a barber-themed bar is a place to get your hair cut, just like people don’t assume a pirate-themed bar is helmed by a licensed sea captain. People have common sense.” (RC/Nebraska Examiner) …But bureaucrats don’t.
HUA
When I was in the cop business, we had a jargony shorthand: “HUA” people. Someone not paying attention to where he was going might be labeled an “HUA driver,” for instance. It stands for Head Up …Asteroid. Yeah, close enough.
Another example is the Nebraska HUA bureaucrats with The Barber Shop speakeasy in the Blackstone entertainment district of Omaha. They actually think this case is important enough to trample the First Amendment. “The government can’t make it illegal to use ordinary words without its permission,” said McNamara, the I.J.’s Deputy Litigation Director. “[It] doesn’t have a free hand to take words out of the dictionary and put them under the control of a state board.”
Imagine The French Laundry — an amazing three-Michelin star restaurant in California, decidedly not a place to bring your dirty clothes in a bag — opening there, instantly increasing the cachet of Omaha fine dining …and being run out of town by the state Restaurant Board. “Sacré bleu! Some HUA diner brought in his soiled skivvies!”
What Next?
How many bars are named The Library, The Boiler Room, The Apothecary, The Depot, The Office (etc. etc. etc.), yet are actually not any of those things? People are not confused, ya HUA paper-pushers! But even if they were, what actual harm comes to them? It’s not like the bartender is going to give them an unlicensed haircut.
This is why we need appellate courts: to counter (federal!) judges who take 36(!!) pages to try to justify squelching legitimate commercial speech. “I still cannot believe the government can look at a bar, know it is a bar, admit no one is confused,” DiGiacomo said, “and still threaten us with jail time because of the name and the decorations.”
Elected Officials Not Doing Their Jobs
State lawmakers shouldn’t wait for the courts to decide this issue: they should take charge and bring the Barber Board under control. Seriously: you allow petty bureaucrats the power to levy ruinous fines and even jail time on someone for having a small barber pole outside a business that actually used to be a barber shop?! There’s a phrase for that: “Out of Control.” Hint: those are very bad optics for a “control” board.
Are you a legislature, or a taxpayer-funded absurdity generator? Are you public servants, or a guild-protection racket wearing a state seal? What, are barbers lining your pockets with millions in (wink-wink) “campaign contributions” funded by $20 haircuts? Get a grip! Fix the law before the Supreme Court fixes it for you.
Note: The Institute for Justice is a nonpartisan, nonprofit public interest law firm that apparently only sues the government, and represents its clients for free. Obviously that’s an expensive proposition, yet around 85 percent of their funding comes from individuals (here is their support page). I was alerted to this story by a press release on their site, but per True’s policy, I waited for there to be a news report about the case to write about it as this publication is news commentary; press releases don’t qualify. I sent a contribution to the I.J. since, as you can tell, I have some pretty strong feelings about this sort of governmental overreach.
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Aren’t trademarks fairly specific? If I owned the bar, I would have fun at least poking at the censorcrats while the case proceeds. For the name, if it was “the barber shop”, that should not collide with “Barbershop” or “Barber shop”. There are plenty of trademarks with “BARBERSHOP” in them.
Note that “BARBERSHOP” is a trademark (wordmark) of Metro-Goldwyn-Mayer Studios Inc. in the category “G & S: IC 041: Entertainment services, namely, the production and distribution of a television series featuring dramas, comedies, romances, science fiction, action and adventures, mysteries and westerns.”. So, not a place to get a haircut.
The barber pole debate is another fun fight, worth getting some popcorn for. I could not figure out if the barber pole has ever received a trademark (a certification mark in this case). It seems that the application only dates back to 2019.
I wonder if the addition of a few cocktail glasses and beer mugs on one of the stripes would make it clear that this is not a barbershop 🙂
Temple law school has an informative take on the subject, apparently from 2017. In that article, they reference a WSJ article entitled “Barber Poles Have Their Own Police Force, With Badges and Everything”. This references a case in Keen NH which is documented here.
In this case, the state *did* get a trim.
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Great finds, and sorry I didn’t find this in the spam folder until May 22. Capitalization isn’t part of wordmarks: it’s common practice to use all upper case, and indeed my own marks include “THIS IS TRUE®” and “GET OUT OF HELL FREE®”, even though I almost never present them that way.
But the barber pole decision is very interesting: first, not applied for until 2019, by which time the genie had been out of the bottle for a century; the “National Association of Barber Boards of America” can’t very well expect the USPTO to agree to restrict it from common use. And apparently the USPTO agreed with that contention, rejecting the registration attempt and declaring the poles “merely ‘informational’,” where I would declare them “merely ornamental.” My stylist in Colorado had one. I was not confused by it.
The Wall Street Journal article is particularly apt. One of the “barber police” officers they’re talking about there is “Arizona Regulatory Investigator” Sam Barcelona, who is also the Executive Director of the Arizona State Board of Barbers. The Journal includes this brief paragraph that applies directly to the Nebraska kerfuffle:
See, that is common sense, even in a state inspector who has a compelling interest in beating down competition. -rc
But — in Nebraska, there is a law about this (apologies, used AI):
“Under Nebraska law, only licensed barber shops are permitted to display barber poles or use barber-pole imagery in their advertising. The display of a barber pole must be used strictly to indicate that the business is offering actual barbering services.This statute has recently been the subject of high-profile legal battles. The Nebraska Board of Barber Examiners actively enforces this law to prevent consumer confusion.”
Now they could change the law — but the Nebraska Board of Barber Examiners might fight that. But they can’t just ignore the law.
You may not agree with the law. And that’s why there is a court battle. But it existed; the bar chose to ignore it; the state said can’t ignore it.
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There are all sorts of local and state laws that violate the Constitution. This is why the essay suggests the legislators should act. (Note the publication of this comment was delayed as the filters marked it as spam. Sure wish I could grasp why.) -rc
I can see how an actual striped barber pole would be confusing, and possibly be some sort of trademark violation, as it has a long and definite history as advertising a place of a particular type of business. I’m sure there’s a reasonable alternative that could be used should that turn out to be the case.
But I struggle to see the harm, should one walk into this business expecting a haircut and discover they only sell drinks. Perhaps you could drown your disappointment in a couple of beers, instead of calling the state in to fix your problems?
It can’t be a “trademark violation” as trademarks are, by design, intended to be unique source identifiers. If everyone in an industry uses it, it is not trademarkable. A trademark is intended to make sure consumers know exactly who they are actually dealing with. For example, it prevents someone from setting up a restaurant that looks and feels like a McDonald’s but actually isn’t a McDonald’s.
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Well, not quite. It doesn’t matter how many barbers use it; widespread use does not make something un-trademarkable (if you will). Think of REALTOR®, which IS in fact a federally registered trademark, which rights are held by the National Association of Realtors. “Every” Realtor uses that mark, pretty much by definition (and if not, they’re a “real estate agent/broker”, and likely not a member of NAR). NAR licenses the use of the mark to its members, and it’s widely used because it creates the appearance of a professional level of expertise, though it’s actually the state-issued license that demonstrates the level of expertise.
That’s not the same as a barber pole: that device is not a registered trademark, let alone one that’s administered by a “National Board of Barbers” who license exclusive use by members. So yes, the state completely overstated their control over the barber pole: it is not legally a trademark.
The real debate is whether words and symbols can be reserved to those licensed by the state. The state says yes; the First Amendment probably says no, because for the state to reserve those words for licensees requires that they show legitimate consumer harm. That’s a conflict, and it’s going to require court action to sort it out. I come down on the side of freedom of expression since there is no reasonable chance of consumer confusion, let alone harm, in this case; there is obviously no deception involved. I’m reasonably confident that the state will lose this one unless the legislature intervenes first, as I have suggested. -rc
This type of government overreach (and stupidity) creates distrust for all government agencies. The overreach in this case is absurdly obvious (to any rational human being), but there are zillions of agencies’ mandates that may or may not impact us, and we aren’t even aware of most of them. It’s easy to believe that every agency makes rules that go far beyond its domain of interest or competence. (That includes courts!)
Makes me wonder if they also outlaw Barber Shop quartet singing since they aren’t licensed barbers singing on stage.
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Don’t give them any ideas! -rc
We have the same sort of bureaucratic ineptitude here in Canada too.
This is as bad as ZT. I sent a donation to The Institute for Justice.
Thanks for supporting the Institute for Justice. They are a fabulous organization that has had great success in obtaining more freedom for all of us. I have been a supporter for many years.
If you want to read story after story of government overreach like this one, take a look at their case files.
> “[…] People have common sense.”
No they don’t!
How many stories have we seen in True over the years of someone getting hurt, or killed, or more to the point suing someone, because common sense missed them entirely?
(Don’t get me wrong. I’m not supporting or agreeing with the overreaching government agency here. I’m just saying that this is not a good counterargument.)
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I do think that a very good percentage of people have reasonable common sense, but indeed the ones who don’t do seem to dominate the news. Remember that “news” isn’t “regular stuff that happens,” but rather the unusual things that people do. That, of course, can be very informative and worthy of comment. -rc
Thanks for helping to spread the word about our work!
An amusing variation would be for the bar to do the bare minimum to qualify as a barbershop, basically putting a barber’s chair in the corner of the bar, in case anybody wants to drink and get a haircut.
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That would be an amusing end-run, but that would require having a (yes!) licensed barber on staff. -rc
“Well, the barber isn’t in right now, but you can have a drink while you wait.”
“OK, when will they get here?”
“2033.”
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“That’s a weird time to start a shift. Why not at half-past 8pm?” 😉 -rc
Better make sure the state barbershop laws don’t prohibit alcohol sales!
I don’t know Randy, but with the current Supreme Court the part of your comment that says, “Get a grip! Fix the law before the Supreme Court fixes it for you”, might just fall into the category of “Be careful what you wish for”.
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You are correct that I am assuming a functional court, which is not currently the case. Still, I think they’re likely to come down on the side of business. -rc