Are the Boy Scouts of America Above the Law?

One of the more interesting pieces of "trademark trivia" is that the Boy Scouts of America (the BSA) were granted a special protection by Congress nearly a century ago, and can now threaten and accuse targets of perceived trademark infringement without having to demonstrate any likelihood of confusion whatsoever.

The BSA is one of the nation's largest and most prominent values-based youth development organizations.  According to its website, the BSA provides a program for young people that builds character, trains them in the responsibilities of participating citizenship, and develops personal fitness.

Recognizing the unique position that the BSA offers to American youth, in 1919, Congress codified a special protection for the Boy Scouts of America, making it “a body corporate and politic of the District of Columbia with perpetual existence.”  The law further provides that  “[the BSA] has the exclusive right to use emblems, badges, descriptive or designating marks, and words or phrases [it] adopts.”

Because the Boy Scouts' "exclusive right to use" these marks is not part of the federal Lanham Act that governs trademarks (which was passed by Congress in 1946), the BSA is not governed by the "likelihood of confusion" standard that applies to virtually everyone else.

Indeed, in Wrenn v. BSA, 2008 U.S. Dist. LEXIS 91913 / 2008 WL 4792683 (N.D. Cal. Oct. 28, 2008), a California District Court ruled that the “BSA need not demonstrate the likelihood of confusion because it has been granted special protection by Congressional charter,” citing The Last Best Beef, LLC v. Dudas, 506 F. 3d 333, 339 (4th Cir. 2007) and S.F. Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 531 (1987), accord, Boy Scouts of Am. v. Teal, 374 F. Supp. 1276, 1278 (E.D. Pa. 1974) (enjoining use of “Sea Scouts”).

This piece of trivia is not purely academic.  Ask the “Hacker Scouts,”a non-profit organization that was recently threatened after receiving an overt cease and desist letter from the BSA that cited the special Congressional charter.

To be sure, the use of special Congressional exemptions from ordinary law is not unique to the Boy Scouts.  Major League Baseball, another storied American institution, enjoys an odd exemption from federal antitrust laws, and of course, Congress itself is exempt from most laws that apply to everyone else, such as the Fair Labor Standards Act, the Civil Rights Act, and laws against insider trading.