The Law of Arms

”Surely even those who affect the greatest contempt for Heraldry will admit that if Arms are to be borne at all, it should be according to the laws of Arms.”

This page contains a brief overwiev of the Law of Arms in some European legal systems. My thesis for the degree of jur.kand. (LL.M.) concerns the law of families' arms: The Law of Families' Heraldic Arms - a comparative study of the historical and present, English, German and Swedish law of families' heraldic arms and its relationship to trademark law, Lund 2001, 165 pp. Although the title is given in English here, the thesis is written in Swedish.

This page contains partly a summary of the thesis. I have also added information on some other legal systems, which I do not present there. On this page, I concentrate on the law as it is today. The legal history of the Law of Arms is presented in my thesis. However, I here also present Bartolus' de Saxoferrato thoughts on this subject. Even if they are legal history now, they are still interesting as the foundation on which the Law of Arms partly is built.

What is considered here is the Law of Arms. Arms can be treated indirectly in other parts of the Law, for example in penal law if arms are used in fraud or forgery. Such questions are not discussed here. However, relevant parts of trademark law and the law of wills are discussed.

Contents of this page:

Relationship between heraldic usages and the law of arms

It must be carefully considered, that some rules are heraldic usages, some other rules are legal rules. Legal rules can be dealt with in courts of law, but the usages cannot. The extent to which the rules are legal rules respectively heraldic usages varies. In legal systems where there are state professional heraldic organisations, e.g. Great Britain, the rules are legal to a larger extent.

Where heraldry is seriously dealt with, both usages and legal rules are of course applied. Therefore, in many cases, no problems will arise since all rules and usages are followed. When it occurrs, that something is done in an unconventional way, it is important to pose the question: Is this contrary to a legal rule, or is it 'only' inappropriate in a heraldic sense.

In the first case, where it is contrary to a legal rule - it can be tried in court or by an authority. In the second case, it cannot be tried in a legal way, but it can be critizised by heralds and heraldists. It seems to me, that the usages are commonly considered and applied.

It occurs, that the usages also are part of the decision of a court. This is necessary, when the court will decide, whether the disputed emblem is heraldic or not. The question of law is then another, and can concern e.g. whose is the shield. If the emblem fulfils the characteristics of heraldry - which belong to the heraldic usages, - the Law of Arms can be applied.

Relationship between names and arms

It has been said before, but it needs to be said again: The fact that two persons have the same family name does not mean that have the same family arms.

There are similarities between names and arms:- they both identify persons, and in many legal systems they are both legally protected in similar ways. However, many unrelated families can have the same name, but unrelated families should still have different arms. It is therefore inconvenient, that many armouries, printed as well as on the internet, show coats of arms and only connect them to a family name, which sometimes is a common one. It ought to be said in such cases who adopted or was granted the arms and when. If that information is given, it can be more easily found out, whose the arms are and are not.

Furthermore, names and arms can be transferred to younger generations differently. Names and arms are mainly transferred through birth, i.e. you get a right to your father's family name and arms when you are born. However, in many European countries, the right to a name can be transferred from the mother, not only from the father. When two persons get married, they can chose to use the name not only of the husband, but also, alternatively, the name of the wife, and in such cases, the children will derive their family name from the mother. Whether this change in the law of names is valid also in the law of arms is a disputed question. It is submitted, that the agnatic line of succession still rules the law of arms. If so, there are even more reasons not to connect a family name with certain arms. Granted arms must follow what is stipulated in the letter patent, i.e. in almost all cases the agnatic line; but what rules the succession of assumed arms is more unclear.

Relationship between trade marks and arms

When Intellectual Property rights in the late 19th century became more important than before, the question arose, how arms were to be protected against use as trade marks. The Convention of Paris of 1883, revised in 1967, protects arms and emblems of states against use as trademarks.

The EU Council Regulation No 40/94 on the Community Trade Mark, CTMR, article 7.1 h) protects the arms which are protected by the Convention of Paris. Article 7.1 i) protects other 'badges, emblems or escutcheons' 'which are of particular public interest'. According to article 52, earlier rights are protected, for example the right to a name. Thus, if heraldic arms are protected by national law, they are also protected by the CTMR. The meaning of arms 'which are of particular public interest' is not yet known. It is submitted, that the sentence refers to well known state or city emblems and, perhaps, some very well known family arms, which are supervised by an authority, e.g. the College of Arms. The bearer of the arms has to be aware, that he himself must protect his rights accordning to article 52.

The EU First Council Directive No 89/104 to approximate the laws of the Member States relating to trade marks is implemented in the national trade mark laws. The rules therefore belong to national law, and will be presented below. The arms protected by the Convention of Paris can (and must) be protected. The directive gives the member states some further possibilities to protect arms (article 3). Rights according to other parts of the law than the trademark law (e.g. the Law of Arms) can be upheld in trade mark law. National courts should interpret national law in the light of the directive. If there are problems in the interpretation thereof, the courts can ask the European Court of Justice (ECJ) for a preliminary ruling.

Bartolus de Saxoferrato - the earliest writer on the Law of Arms

Bartolus de Saxoferrato was born in 1313 or 1314 and died in 1357. He was one of the most famous jurists of the 14th century and belonged to the school of commentators or postglossators. His Tractatus de Insigniis et Armis is the first treatise on the Law of Arms. It is now considered (Cavallar, Degenring and Kirshner) that Bartolus wrote the first, legal, part of the book, and that his son-in-law wrote the second part, which does not concern law but heraldic usages.

Everyone had the right to have a name; therefore everyone according to Bartolus had the right to bear arms. Names and arms have the same function; they identify people. It was not prohibited to assume arms; however, a grant of arms had certain advantages.

There was no legal protection of arms as such, but if someone was injured when someone else took his arms, the original bearer of the arms could lodge a complaint in court. Injury was for example when the use of arms caused confusion among people. Thus, arms were not generally protected. Bartolus famous example was: If an Italian and a German have the same arms, it is allowed, since because of the distance it cannot cause confusion.

The succession of arms was, according to Bartolus, agnatic. That means, that everyone, women and men, could use their father's, but not their mother's, arms. The foundation of this principle is found in Digesta, 50. 16. 195-196, where Ulpian's and Gaius' statements on the subject are found.

When Bartolus wrote, there was no distinction between arms and trade marks. They were all, according to Bartolus, governed by the same rules. One exception, however, was the rules of succession. A trademark should belong to the factory, not the family.

Bartolus' de Saxoferrato wievs on the Law of Arms have been continuously discussed during the more than 600 years which have passed since he wrote his treaty. He has not been considered authoritative everywhere, but most authors on the Law of Arms have found it neccessary to relate to his writings, at least to say that Bartolus was wrong, at most to copy his text.

Bartolus' student, Baldus de Ubaldis, also discussed the Law of Arms. He wanted to give arms a stonger legal protection than Bartolus, since Baldus saw arms more as a symbol of the connecton of the individual to the family, than as a mere individual symbol. Thus, it was important, that different families had different arms.

United Kingdom

England with Wales and Northern Ireland

Under the jurisdiction of the Court of Chivalry, it is not accepted that everyone has the right to bear arms. The condition for having arms is, that a person is a gentleman, or as it has been expressed since 1741, is eminent. Thus, eminent men, eminent women and eminent corporate bodies may bear arms. To be eminent, a certain professional and social standing is required.

An eminent person cannot by himself assume arms. There are two possibilities to get a right to arms:- You have the right to the arms by birth or by grant. If a person assumes arms - be he eminent or not - the arms have no legal protection.

Arms are legally protected if they are once granted by the crown or if they are used since time immemorial. Grants are issued by the kings of arms of the College of Arms. A grant gives the grantee a legal right to the granted arms. User since time immemorial is paradoxically counted back to 1066, but it is presumed to be fulfilled where a shorter period of use - i.e. beyond living memory - can be shown. Because of the heralds' visitations and the registers of grants, it is difficult now to proof a right to arms that way.

The legal protection of arms was tried in court in 1954-55, when the Court of Chivalry, after having been dormant since 1737, tried the case Manchester Corporation v. Manchester Palace of Varieties Ltd. The court forbade the Palace of Varieties to use the arms which were granted to the Manchester Corporation. Thus, the right to arms is upheld in English law.

The right to bear arms and the right to certain arms is inherited in the legitimate agnatic line. A person therefore has the right to his father's arms. Marks of cadency may be used for differentiation. The arms inherited agnatically can, under certain circumstances, be quartered with arms from the maternal side.

Name and arms clauses are clauses in wills which as a condition stipulate that the beneficiary uses the testator's name and arms. The will in itself gives no right to the arms, and the condition can be fulfilled only through a grant from the Crown.

The legal protection of arms granted by the Crown is upheld also in trade mark law according to Trade Marks Act 1994 section 4(4) and Trade Marks Rules 2000 rule 9. The Registrar of trade marks refers arms cases to the College of Arms for advise.

Scotland

No person is entitled to use arms, unless the arms are registered by the Lord Lyon. There is therefore no room for assumption of arms. If one assumes arms, the penalty is a fine of £100.

If infringement of a right to arms occurs, the dispute can be tried by the Lyon Court. The bearer of the arms may petition for interdict against wrongful use and may raise an action for damages. Also in the case where someone uses someone else's arms, the penalty is a fine of £100. Thus, the Lord Lyon and the Lyon Court supervises the use of arms so that Scottish law gives the bearer of arms the foremost protection of his rights.

The succession follows the stipulations in the grant. The oldest son inherits the arms, and the younger sons use differenced arms. Where there are no sons, either the heir of line inherits the arms or the arms follow the more substantial dignities.

The Law of Arms prevail over trade mark law. Thus, a registered trade mark which fulfills the requirements of being heraldic cannot be used as trade mark without being granted to the company by the Lord Lyon.

France

Nowadays, anyone has the possibility to assume arms, provided one does not assume arms, which someone else has a legal right to.

The arms that were established during the Ancien Régime are, just as such noble titles, legally protected. The courts of law protect the rights to such arms just as they protect the rights to names. The status of arms which are assumed at a younger date seems more unclear, but they might have the same legal protection.

Arms which are protected by law are also protected against infringement through use as a trade mark. Where a family has given a company consent to use the arms, a younger generation can withdraw the consent, since every generation has the right to get the arms intact.

Germany

In German law, there has been a distinction Wappenfähigkeit, which meant that all social groups were not entitled to bear arms. However, from the 19th century onwards, this is no longer the case. Today, everyone is entitled to bear arms. Arms are no longer granted, and a right to arms can originate only through assumption.

There are some Reichsgericht-cases of the late 19th century which show, that arms were legally protected. Usurpation could be stopped through court action. The enactment of BGB (Bürgerliches Gesetzbuch) in 1900 did not change this. The right to arms is now considered an analogy to the right to names, BGB § 12. Bundesgerichtshof has in 1992 confirmed that arms are ruled by BGB § 12. Thus, if one has the right to certain arms, that right is protected by the courts.

Historically, the succession of arms in Germany is agnatic. However, recent changes in the law of names has erased the agnatic succession of names. The question is now, whether the analogy between names and arms only concerns the infringement situation or it also concerns the succession of arms. The answer is not self-evident, since it can be argued that the succession of arms follows the non-legal custom, whereas the succession of names follows the foremost administrative regulations of registering what name a person bears.

The arms of the states and the municipal arms are protected by the Trade marks Act. Families' arms are protected therethrough, that BGB § 12 prevails in trade mark law aswell.

Sweden

The right to bear arms is unlimited. Everyone has the possibility to assume arms, provided that the arms do not belong to someone else.

The royal arms and the state arms are regulated in statute law. Other symbols which refer to the state, e.g. arms crowned with a royal crown, follow the same rules. These arms may not be used in commerce without permission.

Provinces and communities register their arms in the Patent and Registration Office. Registered arms may not be used as a trade mark in commerce without permission.

Many noble families' arms have been granted by the King. The oldest noble families and many non-noble families have assumed arms. Noble arms are protected by a still valid royal order of 1762, which says, that non-noble men may not use 'open helmets' or noble escutcheons. This has been interpreted as I. a prohibition for non-nobles to use helmets symbolising nobilty and II. a prohibition for non-nobles to usurp the arms of noble families. It is not, however, a general prohibition against assumption of arms, as long as they do not infringe the rights of a noble family. Within the nobility, there is a rule in the Regulation of the House of Nobility, which says, that noble families may not usurp eachother's arms. Since no nobilizations take place anymore, this is only relevant for families ennobled before 1974 who not yet have been introduced in the House of Nobility.

Thus, there is a legal protection of noble arms. However, there ought today, in analogy with the development in the law of names, be a possibility of a legal protection of non-noble arms aswell. Legal protection cannot follow directly through the assumption of arms, but the arms must also get known as a symbol of the bearer. Exaclty what is required in this context is unclear.

This is the law. The heraldic usage is stricter. It is inappropriate in a heraldic sense to use the arms which another has assumed if they are published in a roll of arms, even though all such arms do not have legal protection.

It is submitted, that noble arms follow nobility. Only the members of a noble family should have a right to the family's arms, although the noble surnames are no longer exclusive for the nobles. Someone can use his maternal grandfather's noble name, but he can not claim his maternal grandfather's nobility. It is submitted that the right to arms follow what is said in the letters patent of nobility - an agnatic succession -, although the names are regulated differently nowadays.

Assumed arms ought to succeed according to what was decided at the assumption. Presumably, the succession is agnatic. However, succession of arms is a matter of heraldic usages, not law. Since the concept of counting families according to the agnatic principle is questioned, it is unclear what the usages will look like in the future.

The arms of the state, the provinces and communities are protected against being used in trade marks. Concerning family arms, this question is now tried in the Patent and Registration Office. A company wants to register arms, which since 600 years belong to a noble family. It is submitted, that these arms can be protected in analogy with the protection of families names against use in trade marks.

[1] Planché is quoted in Ashman, Peter M., ”Heraldry and the Law of Arms in England” in The Journal of Legal History, vol. 9, nr. 1, London 1988, p. 52.