Both can serve as examples of trademark use in connection with membership in an organization. In May, the Wall Street Journal reported on enforcement actions by the New Hampshire Board of Barbering, Cosmetology & Esthetics to fine the unauthorized use of a barber pole by a hair salon that did not have any barbers on staff. Jennifer Levitz, “Barber Poles Have Their Own Police Force, With Badges and Everything,” Wall Street Journal (May 2, 2017) (subscription may be required). The article also reported on the enforcement actions by the Arizona State Board of Barbers carried out by their state inspectors against salons for unlawful displays of barber poles or its likeness, without a licensed barber on duty (a violation of the Arizona Administrative Code). Id.
The article recounts a number of enforcement actions across the country, which is welcome news to the National Association of Barber Boards of America (“NABBA”). Id. NABBA cited concerns about misleading the public about the display of the barber pole when no barbers are employed at that salon. There are apparently different training and certification guidelines for barbers than for hairdressers, some of these guidelines are set by state statues or regulations. “The cosmetology field does not have a symbol so now they’ve encroached on ours. They’re trying to be something they’re not,” said Renee Patton, president of NABBA. Id.
Some states explicitly require that only licensed barbers (or, businesses that employ at least one licensed barber) may display barber poles. For instance, in Arkansas, the rules are quite clear:
(a) As used in this chapter, unless the context otherwise requires, “barbering” means any one (1) or any combination of the following practices when performed upon the head, face, and neck for cosmetic purposes and done for the public generally for pay, either directly or indirectly:
(6) Use of the traditional symbol known as the “barber pole” which is composed of a vertical cylinder or pole with a ball on top, with alternating stripes of any combination including red and white, and blue, which run diagonally along the length of the cylinder or pole, or any likeness therefore, with the intent to mislead the public manner that would make the public believe that barbering was being practiced in or that a licensed barber was employed in an establishment that does not employ barbers.
Arkansas Barber Law §17-20-102; see also Arkansas State Board of Barber Examiners, “Barber Pole News,” 2010-2011 (“THE BARBER POLE IS NOW A PART OF THE BARBER LAW AND CAN ONLY BE DISPLAYED WHERE THERE IS A LICENSED BARBER!!!!!”). Similarly, the Arkansas Barber Law penalizes the operation as a barber, barbershop, barber corporation or barber school or college without a state-issued certificate of registration. Arkansas Barber Law § 17-20-104. Changes proposed to the law in March 2017 would clarify that “barbering” can be performed “in any location which will be defined as a barber shop” and that the use of a barber pole by non-barbers is prohibited. Arkansas Senate Bill 730 (as linked from Arkansas State Board of Barber Examiners’ Rules and Regulations page)
By contrast, in at least one state, the statute and regulations are silent about penalties for the unauthorized use of a barber pole, but it is clear that a barber pole is part of the minimum equipment required to establish a barber shop. E.g., 49 Pa. Code. § 3.54 (minimum equipment standards – requiring “one barber pole, or a sign indicating that barbering services are performed”).
What Does the Barber Pole Mean?
NABBA describes the pole, and the special meaning of the red, blue and white stripes, as being a “historic symbol” associated only with barbers, dating back to when barbers also “yanked teeth” and “did bloodletting.” Id. The Chirurgeon’s Apprentice describes the meaning of all of the symbols embodied in the traditional barber’s pole:
The original barber’s pole has a brass ball at its top, representing the vessel in which leeches were kept and/or the basin which received the patient’s blood. The pole itself represents the rod which the patient held tightly during the bloodletting procedure to show the barber where the veins were located. The red and white stripes represents the bloodied and clean bandages used during the procedure. Afterwards, these bandages were washed and hung to dry on the rod outside the shop. The wind would twist the bandages together, forming the familiar spiral pattern we see on the barber poles of today.
The Chirurgeon’s Apprentice, “A History of the Barber’s Pole,” Sept. 15, 2010; see also Elizabeth Nix, “Why are barber poles red, white and blue?,” AskHistory (History.com), June 25, 2014 (suggesting that the pole represented the “stick that a patient squeezed to make the veins in his arm stand out more prominently for the procedure”).
Trademark Significance of the Barber Pole
All of these descriptions fit how one would describe the symbols associated with a trademark; in other words, a symbol that tells purchasers and potential purchasers where the goods or services come from – in this case, only from properly-licensed barbers. As described, barber poles have “source identifying” significance and their display conveys to the public the qualification of the provider to offer licensed barber services (i.e., the quality of the services offered in connection with the barber pole). The fact that the trade association is protecting the pole from misuse by those who are not properly licensed or qualified is further evidence of the pole’s value as a trademark.
Such trademarks that are used to convey membership in a particular community – as represented by the use of symbols that may only be used by members – may be registrable in the United States Patent & Trademark Office (USPTO) as collective membership marks (Trademark Manual of Examining Procedure (TMEP) § 1304) or if it simply reflects the benefits that an organization can provide to its members, as service marks associated with association services (TMEP §§ 1301, 1402.11(c)), depending on the actual manner in which the mark is used in commerce and whether the use is made by the members or by the association.
It is also possible that the mark could serve as a certification mark, whereby the mark owner would certify that users of the mark met the appropriate qualifications and requirements in order to display it. TMEP § 1306. Notably, however, a certification mark does not indicate source of the particular goods or services, but instead that the person using the mark in connection with those goods and services meets certain qualifications. TMEP § 1306.04(b)(ii) (“A trademark or service mark serves to indicate the origin of goods or services, whereas a certification mark serves to guarantee certain qualities or characteristics.”) A certification mark is also not used by its owner, but instead by those who are “certified” to meet the criteria set by the owner. Id.
Protection of Unregistered Marks
The WSJ article does not mention trademark use at all, which suggests that the barber pole may not be registered with the USPTO, but unregistered marks may also be protected against infringement by junior users, users who do not meet the membership criteria or other persons who are not licensed to use the mark. Compare 15 U.S.C. § 1114(a) (covering infringement of a registered mark) with 15 U.S.C. § 1125(a) (covering infringement of an unregistered mark, false advertising and other forms of unfair competition).
Lapel Pins and Other Indicia of Membership
Similarly, lapel pins showing one’s membership in a fraternal order (like fraternities, sororities, the Masons, the National Society Daughters of the American Revolution, etc.) can also demonstrate use in commerce of a particular collective membership mark by its members and can serve as specimens of use to support such a trademark application. TMEP § 1304.02(a)(i)(C).
Given the article’s description of how misuse of the barber pole could potentially mislead consumers, purchasers and prospective purchasers about the delivery of services at that establishment by a barber, it appears that barber poles may be just as indicative of membership in a collective organization as the use of a membership lapel pin or of a certification mark as a license to practice from a recognized licensing authority. Only members of the group would be permitted to display the barber pole to demonstrate their membership, qualification (and perhaps license) to provide barber services – and the organization will take steps to correct any misuse by non-members or other unauthorized users.