Don't Confuse That Cattle Brand With a Trademark

January 2018

The word "maverick" has been used to describe politicians such as Senators John McCain (Arizona) and Lowell Weicker (Connecticut), but the term derives from 19th century land baron Samuel Maverick, a Texas rancher who refused to brand his cattle despite the fact that it had become a widely accepted practice. As a result of Maverick's decision to buck the system, unbranded, free-ranging cattle became known as "mavericks." The practice of cattle branding originated with the Spaniards, who brought the practice to Mexico. The first cattle brand registry was established in Mexico City in 1537, and cattle branding was introduced in the United States in the mid-1800s along with open range grazing. The term "cattle branding" refers to the practice of branding cattle with a hot iron, although other methods (such as freeze branding, ear tattoos, and RFID tagging) are also used to identify the cattle owner.

Under the laws of Montana (and most states excluding several on the East Coast), any brand used to identify livestock must be registered with the state. Brand laws typically specify where on the animal the brand may be placed, and they also provide that the brand itself establishes a rebuttable presumption that the owner of the brand also owns the livestock. These brand registries also serve to alleviate confusion by ensuring that no two brands are confusingly similar—a test that is also applied under trademark law.

The Montana Department of Livestock administers brands for the state of Montana. Under Mont. Code Ann. § 81-3-102, it is unlawful to brand any domestic animal or livestock unless the brand has been recorded with the state within the past ten years. No more than five brands may be recorded by the same person. Mont. Code Ann. § 81-3-211 makes it illegal to sell, slaughter or move livestock from one county to another unless the livestock have been inspected for brands by a state stock inspector. Furthermore, the owner of the brand has the exclusive right to use the brand on the species of animal designated in the brand recordation. Mont. Code Ann. § 81-3-105. Although a brand may consist of any symbol(s), the Montana Department of Livestock "suggests applying for brands that are side by side containing two letters and/or numbers, with a bar, quarter circle or slash."

Livestock brands and trademarks are similar in that they confer exclusive rights upon the owner to use a certain name or symbol. They are also similar in that the regulating agency must undertake some degree of analysis to determine whether the name or symbol is confusingly similar to other registered names or symbols before permitting a new brand or trademark to be registered. The similarities end there, however. Although trademarks may be registered for livestock (examples include CSR owned by Copper Spring Ranch LLC and SIMANGUS owned by the American Simmentel Association, both of Bozeman, Montana), a livestock brand does not carry the same basket of rights that a federally registered trademark does. Perhaps the most significant distinction between a livestock brand and a trademark is that the livestock brand allows the owner to prevent others from using the same (or confusingly similar) brand on the same species of livestock; trademark rights are broader in that the owner of a trademark may prevent others from using the same (or confusingly similar) mark not only on the goods covered by the registration but also on related products (for example, beer and wine are considered related, as are clothing and watches).

We periodically receive calls from clients who want us to send a cease and desist letter to someone who is using their state-registered livestock brand without authorization. Unless the case involves the unauthorized use of the brand on livestock (which it usually does not), we need to turn to trademark law for recourse. A trademark may be registered at the state or federal level; however, for the reasons articulated here, we strongly recommend registration of trademarks with the U.S. Patent and Trademark Office. This article describes the federal trademark registration process. In order to register a trademark, a person must specify the goods or services with which the mark is being used. A trademark may not be registered either federally or on a state level unless it is actually being used by the trademark owner in connection with the goods or services specified in the application.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.