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Atlanta’s federal appeals court is wrestling with a border dispute that has nothing to do with immigration or international boundaries. A three-judge panel last week heard arguments over a greeting-card maker’s claims that it has trademarked the perforated border around postage stamps�and that the U.S. Postal Service has violated the company’s rights. At issue are not the stamps themselves, which the Postal Service has copyrighted, but greeting cards showing pictures of stamps that the company, International Stamp Art Inc., and the Postal Service each sell. Since its founding in 1985, the South Carolina-based company has entered into multiple licensing agreements with the Postal Service for the right to use the stamp artwork on its products. But in 1994, the company filed for the trademark on the perforated border around the stamps, and when the Postal Service began selling its own greeting cards with pictures of its stamps, the company sued for trademark infringement. Last year Judge Thomas W. Thrash of the U.S. District Court in Atlanta granted the government summary judgment, ruling that the Postal Service had acted in good faith by printing cards with pictures of stamps the Postal Service had copyrighted. At the 11th U.S. Circuit Court of Appeals on Friday, ISA lawyer James J. Wolfson of Greenberg Traurig said the Postal Service can publish the stamp art without infringing on the trademark. He noted that when the post office created cards of its best-selling stamp, Elvis Presley, it did not print the border around the artwork. Wolfson said ISA holds an “incontestable” trademark on the wavy border for use on greeting and note cards, a point Judges Edward E. Carnes and Stanley F. Birch Jr. acknowledged. But Carnes and Birch sounded like they thought the Postal Service should be able to print pictures of its own product, border included, on greeting and note cards it sells. “They just want to accurately portray their product,” Carnes told Wolfson. “The problem I have is that the alternative [printing just the square art on the stamp without the border] requires them to inaccurately depict their product.” Wolfson added that the Postal Service acted in bad faith because it was aware of ISA’s trademark of the border. He said postal executives engaged in “duplicitous conduct” in 10 years of meetings with ISA, including negotiations for the company to sell its own cards in post offices. The company shared card ideas and marketing plans with the post office, Wolfson said, and then the Postal Service cut off contact. Carnes said that just knowing about the trademark does not create bad faith if the Postal Service is reproducing its own product. But Birch, a trademark and copyright lawyer for the maker of Cabbage Patch Kids before joining the bench, said he had a problem with the fact that the Postal Service acted with knowledge of the trademark. When the lawyer for the Postal Service, Scott D. Bolden of the Department of Justice, rose to speak, Birch said the judges could not understand how the Postal Service let ISA get a trademark that became incontestable on the stamp border. During his presentation, Bolden dismissed Wolfson’s argument that just because the Postal Service did not use the perforation design on cards with the Elvis Presley stamps does not mean it should not be allowed to use the border now. If a ring of fire or a drop shadow were part of ISA’s trademark on its stamp cards, Bolden said, the Postal Service could not argue. But the border trademark is identical to actual perforated edges of a stamp, which leaves no alternative short of inaccurately depicting its own product. He also said that the Postal Service had no intent to confuse customers and included marks such as the post office logo on the cards. Bolden also said the Postal Service has a copyright on the whole image of the stamp, not just the square artwork. The copyright is for use of the image as a stamp, not as a picture of a stamp. Bolden countered the allegations of bad faith by saying that the Postal Service published cards with the company DesignLine depicting the whole stamp long before it began talks with ISA. The case is International Stamp Art Inc. v. United States Postal Service, 05-13492. Editorial Intern Wendy Moses can be reached at [email protected]

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