Can businesses use the Maryland flag in a state promotional logo without violating the flag desecration law?

Plain-English summary

A state senator asked the Attorney General in 1990 whether the "Maryland With Pride" logo, a state promotional mark that adapts the Maryland flag into a pennant, violated Maryland's flag desecration law. A constituent had complained about a company using the logo, with its flag design, to promote itself.

The Attorney General concluded the logo did not violate the law. The relevant provision, Article 27, §82(c), makes it an offense for a "person" to attach the flag to merchandise in order to advertise or promote it. But under a settled rule of Maryland law, the word "person" in a statute does not include the State, its agencies, or its subdivisions unless the legislature clearly says otherwise, especially where reading in the State would cut against its own sovereignty. Reading §82(c) to bar the State from marketing Maryland products with the State flag would do exactly that. Because "Maryland With Pride" was a state-run program, jointly operated by the Departments of Agriculture and Economic and Employment Development, and because the State controlled the logo and licensed it to participating businesses much as a trademark owner licenses a trademark, the program was a state marketing effort, not the kind of private commercial exploitation the law targets. The opinion also pointed out a separate problem: a 1990 amendment to the flag law had deleted the definition that made §82 apply to flag likenesses at all, so as a practical matter the misuse law could no longer be enforced against flag images, and it recommended the General Assembly restore that definition.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maryland's criminal statutes have since been recodified out of Article 27 into the Criminal Law Article, and the opinion itself notes that the flag-likeness definition needed a legislative fix, so the statutory landscape here has almost certainly changed. Treat the specific section numbers and the enforceability gap described here as the situation in 1990, and check current law before relying on any of it.

Common questions

Could a business use the Maryland flag in a logo without breaking the flag law?
Under this 1990 opinion, yes, at least through the state's "Maryland With Pride" program. The Attorney General concluded that program's logo, which adapts the Maryland flag, did not violate the commercial-misuse provision of the flag law.

Why didn't the state promotional logo count as illegal commercial misuse of the flag?
Because the misuse ban in Article 27, §82(c) applies to a "person," and under Maryland law "person" does not include the State unless the legislature clearly says so. "Maryland With Pride" was a state-run, state-controlled program, so it fell outside the ban even though private businesses displayed the logo, since the State was licensing the logo to them much like a trademark owner licenses a trademark.

What is the difference between allowed and prohibited commercial use of the flag?
Earlier Attorney General opinions drew a line between private commercial exploitation of the state emblem to enhance a product's value, which was prohibited, and noncommercial use, which was not. This opinion treated the state-licensed "Maryland With Pride" program as a government marketing effort to promote Maryland products, which it called a far cry from private commercial exploitation.

Did the opinion find any problem with the flag law itself?
Yes. It noted that a 1990 amendment had deleted the definition that made the misuse law apply to copies or representations of the flag, which effectively left §82 unenforceable against misuse of flag likenesses. The Attorney General recommended that the General Assembly restore that definition, limited to §82.

Background and statutory framework

Maryland's flag law has two distinct pieces relevant here. One, Article 27, §82(c), is a commercial-misuse provision: it made it an offense to expose for sale, or use to advertise or promote merchandise, any article to which a flag or state emblem had been attached. A violation was a misdemeanor punishable by a fine of up to $500 (Article 27, §85). Before 1990, the definition of "flag" for this purpose reached any copy, picture, or representation purporting to be the Maryland flag (former Article 27, §81). But the 1990 revision to the flag law, Chapters 420 and 422, deleted that definitional language. That revision was aimed at preventing breaches of the peace from destruction of the flag itself, as the companion opinion at 75 Opinions of the Attorney General 147 (1990) explains, and was not focused on commercial misuse. The unintended side effect, the opinion observed, was to leave §82 unenforceable as to misuse of flag likenesses, which is why it recommended a targeted legislative fix. To answer the senator's question fully, though, the opinion analyzed §82 as if it still reached flag likenesses.

The heart of the analysis was a rule of statutory construction. In Unnamed Physician v. Commission on Medical Discipline of Maryland, 285 Md. 1 (1979), the Court of Appeals held that "the word 'person' in a statute does not include the State, its agencies or subdivisions unless an intention to include these entities is made manifest by the Legislature." That rule applies with special force where reading the State into a prohibition would impair its sovereignty, here, by stripping the State of the ability to market its own products with the State flag (United States v. Coumantaros; Mayor and City Council v. Baltimore Gas & Elec. Co.). The opinion found no sign the General Assembly meant to limit the State that way, and concluded §82(c) simply did not apply to the State's own use of the flag on merchandise.

The remaining question was whether that reasoning carried over to a program whose logo private companies actually display. The opinion said it did, because the program was thoroughly a state undertaking. "Maryland With Pride," introduced by Governor Schaefer in 1987, was a cooperative effort of the Departments of Agriculture and Economic and Employment Development to identify and promote products grown, processed, manufactured, or handcrafted in Maryland, tied to those departments' statutory economic-development and promotion missions (Article 83A, §§2-101, 2-103(c), and 4-103). The State controlled the logo, required businesses to register, and in effect licensed the mark to participants much as a trademark owner licenses a trademark. On that footing, the program was reasonably calculated to further the departments' public purposes and was a far cry from the private commercial exploitation §82(c) prohibits. The conclusion: Article 27, §82(c) did not apply to the use of the flag in the State's "Maryland With Pride" program.

Citations and references

Statutes:

• Article 27, §82 and §82(c), the commercial-misuse-of-the-flag provision, with its penalty at Article 27, §85
• Former Article 27, §81, the pre-1990 definition of "flag" that reached copies and representations, deleted by Chapters 420 and 422 of the Laws of Maryland 1990
• Article 83A, §§2-101, 2-103(c), and 4-103, the economic-development and promotion missions of the Department of Economic and Employment Development

Cases:

• Unnamed Physician v. Commission on Medical Discipline of Maryland, 285 Md. 1, 12, 400 A.2d 396 (1979), holding "person" in a statute does not include the State absent a manifest legislative intent
• United States v. Coumantaros, 165 F. Supp. 695, 700 (D. Md. 1958), and Mayor and City Council v. Baltimore Gas & Elec. Co., 232 Md. 123, 136, 192 A.2d 87 (1963), on construing statutes to avoid impairing the State's sovereignty

The opinion also relied on the companion flag opinion at 75 Opinions of the Attorney General 147 (1990), a series of older Attorney General opinions interpreting §82, and a treatise, 3 Callman, The Law of Unfair Competition Trademarks and Monopolies §19.48 (4th ed. 1983).

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 152-156 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Criminal Law — Statutes — Flag Law — Use of Maryland Flag in "Maryland With Pride" Program Logo Does Not Violate Flag Desecration Law

December 11, 1990

The Honorable C. Bernard Fowler
Senate of Maryland

 You have requested our opinion concerning the applicability of Maryland's flag desecration law to the logo that businesses may use if they join the "Maryland With Pride" program. In your letter to this office, you stated that you had received a complaint from a constituent who was offended that a company was using the "Maryland With Pride" logo, with its adaptation of the Maryland flag, to promote the company.

 For the reasons stated below, we conclude that the "Maryland With Pride" program's logo does not violate the flag desecration law.

I

The "Maryland With Pride" Program

 The "Maryland With Pride" program is a promotional campaign, introduced in 1987 by Governor Schaefer, designed to identify the diverse products that are grown, processed, manufactured, or handcrafted in Maryland. These range from microchips to apples, from home paint to wine. Businesses that offer a service are also invited to join the program.

 The "Maryland With Pride" logo contains a stylized version of the Maryland flag, in the form of a pennant with the word "Maryland" above and the words "With Pride" below. Displayed on labels, packaging, and advertisements, the logo seeks to create consumer awareness and to symbolize the pride Marylanders have in the goods and services they produce.

 The promotion is a cooperative program of the Departments of Agriculture and Economic and Employment Development. Businesses pay no fee for signing on with the program. Each business is responsible, however, for any costs that result from adapting the logo to labels, packaging, and the like. The program has suggested that the logo may be displayed on products, packaging, shipping materials, advertising.

 In return for the businesses' use of the logo, the "Maryland With Pride" program provides several marketing efforts designed to promote the businesses. The program showcases "Maryland With Pride" businesses in a permanent display at the Baltimore/Washington International Airport, and two traveling displays promote member businesses at trade shows, conventions, and public events. In addition, listings of the various industry catalogues are available to "Maryland With Pride" members, to encourage business-to-business opportunities.

II

Commercial Misuse of the Flag

 Article 27, §82 of the Maryland Code provides as follows:

          No person shall, in any manner, for exhibition or display:

          (c) Expose to public view for sale, manufacture, or otherwise, or to sell, give or have in possession for sale, for gift or use for any purpose, any substance, being an article of merchandise, receptacle, or thing for holding or carrying merchandise, upon or to which shall have been produced or attached any such flag, standard, color, ensign or shield, in order to advertise, call attention to, decorate, mark or distinguish such article or substance.

A violation of §82 is a misdemeanor, punishable by a fine of up to $500. Article 27, §85.

 Prior to 1990, the definition of "flag" for purposes of this prohibition included any "copy, picture or representation ... purporting to be" the Maryland flag "or a representation thereof." Former Article 27, §81. However, in Chapters 420 and 422 of the Laws of Maryland 1990, the General Assembly deleted this language. This legislation was not focused on commercial misuse of likenesses of the flag; rather, the legislation was intended to prevent breaches of the peace caused by the destruction of the flag itself. See 75 Opinions of the Attorney General 147 (1990).1 Nevertheless, the practical effect of the amendment to the definition of "flag" is to render §82 unenforceable as to misuse of likenesses of the flag. We recommend that the General Assembly consider a restoration of the old definition, limited to §82.

 In any event, in order to answer your question fully, this opinion will analyze the applicability of §82 to the "Maryland With Pride" logo as if the provision still applied (or, after amendment, will again apply) to likenesses of the flag.

 Numerous prior opinions of the Attorney General have interpreted §82. See, e.g., 31 Opinions of the Attorney General 205 (1946); 24 Opinions of the Attorney General 666 (1939); 23 Opinions of the Attorney General 507 (1938); 22 Opinions of the Attorney General 525 (1937); 21 Opinions of the Attorney General 578 (1936); 10 Opinions of the Attorney General 180 (1925); 9 Opinions of the Attorney General 280 (1924); 7 Opinions of the Attorney General 489 (1922). These opinions distinguish between private commercial exploitation of the State emblem, intended to enhance the value of a product, which is prohibited; and noncommercial use of the State emblem on stationery or on items like books, which is not.

III

Inapplicability of Flag Law to "Maryland With Pride" Program

 We begin with the premise that Article 27, §82(c) does not apply to the State's own use of the flag on articles of merchandise or otherwise. In Unnamed Physician v. Commission on Medical Discipline of Maryland, 285 Md. 1, 12, 400 A.2d 396 (1979), the Court of Appeals held that "the word 'person' in a statute does not include the State, its agencies or subdivisions unless an intention to include these entities is made manifest by the Legislature."

 We have no reason to believe that the General Assembly meant to limit the State's ability to market its own merchandise with the State flag. Such a construction of Article 27, §82(c) would deprive the State of a power to the detriment of its sovereignty — precisely the kind of situation in which the rule of construction is most vigorously applied. See United States v. Coumantaros, 165 F. Supp. 695, 700 (D. Md. 1958); Mayor and City Council v. Baltimore Gas & Elec. Co., 232 Md. 123, 136, 192 A.2d 87 (1963). Cf. 67 Opinions of the Attorney General 380, 386-87 (1982).2 Moreover, this reasoning applies as forcefully to the "Maryland With Pride" program, albeit the logo is used by private companies.

 The "Maryland With Pride" program is a cooperative endeavor of the Departments of Agriculture and Economic and Employment Development. The Department of Agriculture's Office of Marketing and Agricultural Development carries out many activities to assist the agricultural community in marketing and product promotion. The marketing services section provides programs and services to help all segments of the economy, from producer to consumer, through the marketing system. Programs include market improvement projects to enhance quality and presentation of agricultural commodities to the consumer, international marketing, and market news.

 In the Department of Economic and Employment Development, the Division of Business Development has the general responsibility of advancing the economic welfare of the people through programs and activities to develop in a proper manner the State's natural resources and economic opportunities. Article 83A, §2-101. The Division coordinates activities with those of the Division of Tourism and Promotion. Article 83A, §2-103(c). The latter division attempts to promote Maryland businesses and job opportunities, advertise the State, and disseminate information about the State. See Article 83A, §4-103.

 The "Maryland With Pride" program was developed to further these objectives. Moreover, use of the program's logo is controlled by the State. Businesses must complete a registration form to become a member of the "Maryland With Pride" program. In effect, the program is licensing its logo to participating businesses, much as a trademark is licensed by the trademark owner. See generally 3 Callman, The Law of Unfair Competition Trademarks and Monopolies §19.48, at 417 (4th ed. 1983).

 In short, the program is reasonably calculated to promote and further the public purposes of the Departments of Agriculture and the Economic and Employment Development. The promotional campaign is designed to identify products that are grown, processed, manufactured, or handcrafted in Maryland and thereby to promote Maryland. This program is a far cry from the private commercial exploitation of the Maryland flag prohibited in Article 27, §82(c).

IV

Conclusion

 In summary, it is our opinion that Article 27, §82(c) does not apply to the use of the flag in the State's "Maryland With Pride" program.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        Alexander Wright, Jr.
                                        Assistant Attorney General

                                        Jack Schwartz
                                        Chief Counsel
                                          Opinions & Advice

1
75 Opinions of the Attorney General 147 reviewed the legislative history of the 1990 amendment to the flag law. We are not aware of any discussion of the effect of the amendment on §82, which was not itself amended.

2
In this opinion, the Attorney General concluded that a governmental entity is a "person" under the State trademark registration statute, because application of the term "would result solely in enhancement of the entity's proprietary activities." 67 Opinions of the Attorney General at 387. This conclusion is not at odds with the rule that "[a] governmental entity will be excluded from the general term 'person' if the contrary reading would result in impairment of the entity's sovereignty ...." 67 Opinions of the Attorney General at 386.