Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Legal opinions of the Secretariat of the United Nations

   (Issued or prepared by the Office of Legal Affairs)

   COMMERCIAL ISSUES

   1. USE OF THE UNITED NATIONS NAME AND EMBLEM

      Memorandum to the Acting Deputy United Nations High Commissioner for Human Rights

   1. Introduction

   1. The purpose of the present paper first is to examine the Organization's rules and policy in respect of the use of the United Nations name and emblem by outside entities as well as the rules and policy concerning acceptance and publicizing of private donations. That examination is offered in section 2 of this note, which sets out the rules concerning the use of the United Nations name and emblem by outside entities. The rules and policy concerning the use of the United Nations name and emblem derive from a General Assembly resolution. Section 3 of the note addresses the most recent and relevant practice of the Organization raising these issues: the fiftieth anniversary commemoration, including the activities of the Foundation for the 50th Anniversary of the United Nations. Section 4 briefly addresses the practice of UNICEF in these areas. Section 5 contains the conclusions resulting from the analysis of the rules, policy and practices of the Organization.

   2. General overview of the rules and policy

      2.1 Use of the United Nations name and emblem by outside entities

   2. The legislative basis for the use of the United Nations name and emblem derives from General Assembly resolution 92 (I) of 7 December 1946, entitled "Official Seal and Emblem of the United Nations". That resolution reserves the use of the United Nations name and emblem for official purposes of the Organization, and prohibits its use by outside entities without the authorization of the Secretary-General. The relevant part of the resolution reads as follows:

      "The General Assembly,

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      "2. Considers that it is necessary to protect the name of the Organization and its distinctive emblem and official seal;

      "Recommends therefore:

      (a) That Members of the United Nations should take such legislative or other appropriate measures as are necessary to prevent the use, without authorization by the Secretary-General of the United Nations, and in particular for commercial purposes by means of trademarks or commercial labels, of the emblem, the official seal and the name of the United Nations, and of that name through the use of initial letters;

      (b) That the prohibition should take effect as soon as practicable".

   3. The Organization's policy is that the use of the United Nations name and emblem, as well as any abbreviations thereof, is reserved for official purposes of the Organization; commercial use, as such,1 is prohibited; and any use of the United Nations name for other, non-commercial purposes requires the explicit authorization of the Secretary-General. In this respect, it is important to note that while the terms of the resolution could be construed to simply express a particular concern regarding the use of the name or emblem for commercial purposes, the Office of Legal Affairs, consistent with such an interpretation, has often referred to the established policy of the Organization not to grant permission for such use or, on a number of occasions, has indicated that such use is prohibited.

   4. It is important to note also that the United Nations name and emblem are protected worldwide free of charge under article 6ter of the Paris Convention for the Protection of Industrial Property, on the assumption that they are not used for commercial purposes. Accordingly, the long-standing policy of the Organization is not to authorize the commercial use of its name or emblem.

   5. Article 6ter protects the names and emblems of "international intergovernmental organizations" in a privileged manner, i.e., worldwide and very inex-pensive, provided that those names and emblems have been registered with the World Intellectual Property Organization and have been communicated to its member States. The Paris Convention allows any international intergovernmental organization to take action in countries party to it to prevent the unauthorized use of both its name and its emblem. Notably, in 1979, the Governing Body of WIPO decided that organs or bodies of "international intergovernmental organizations" that used their names and emblems in commercial activities lost the privileged protection provided by article 6ter. In that case, protection under the Paris Convention would have to be sought, and an appropriate fee be paid, in each country, for each individual product on which the name and emblem registered would be used, as in the case of any other commercial entity.

   6. If the Organization changed its policy concerning the commercial use of the United Nations name and emblem, it would clearly run the risk of eventually losing the privileged, inexpensive protection provided under the Paris Convention, requiring it to obtain protection on a country-by-country basis. Moreover, granting authorizations for clearly commercial uses of the United Nations name or emblem might expose the Secretary-General to a multitude of demands for such use of the emblem by private entities. Granting such authority might also expose the Secretary-General to possible Member State criticism in view of the particular concern regarding commercial use reflected in General Assembly resolution 92 (I).

   7. The Organization's policy on the use of the United Nations name and emblem is reflected in the internal Guidelines, developed in 1972, for considering cases involving the use of the United Nations emblem. According to those Guide-lines, continuing use of the United Nations name, through its inclusion in the title of an entity, may be authorized for United Nations Associations with national and local coverage and for non-commercial organizations, provided that such inclusion is genuinely descriptive of the organization, will not imply official connection with the United Nations and will serve to foster support for or interest in the United Nations or in certain of its programmes.

   8. If an outside entity is authorized to include the United Nations name in its title, it may also be authorized to use the United Nations emblem on stationery and publications in addition to its own logo.2 However, the Organization routinely requires that the emblem be modified by adding the words "United Nations" or "UN" above and the words "We believe" or "Our hope for mankind" below the emblem. The appearance of those words together with the emblem makes it clear that no official use of the United Nations emblem is involved and that it is being reproduced as a demonstration of support for the United Nations. The emblem should appear separately, and some distance away from the insignia of the outside body. Notably, the policy and practice generally have been to limit this authorization to not-for-profit entities.

   9. When outside entities are authorized to continuously use the United Nations emblem on their stationery and other materials, it is realized that, being not-for-profit entities, they have to carry out fund-raising to sustain themselves and that, accordingly, fund-raising materials (e.g., leaflets requesting donations) would be printed on their stationery depicting, inter alia, the United Nations emblem. This is viewed as acceptable provided that the funds to be raised are used for the main purposes of the entity.3

   10. In conclusion, it should be noted that, on the basis of General Assembly resolution 92 (I), the Secretary-General has developed a policy concerning the granting to outside entities of the right to use the United Nations emblem and name.

       2.2 Use of name and emblem for fund-raising

   11. As regards the recognition by the United Nations of private donors, the United Nations has not promulgated a specific regulation, rule or procedure to regulate the manner in which private donors may be acknowledged.4 A determination of the appropriateness of a proposed form of acknowledgement is under-taken on a case-by-case basis and must take into account the policy concerning the use of the United Nations name and emblem and the rules governing such use by outside entities.

   12. Based on the established strict policy prohibiting the commercial use of the United Nations name and emblem, the Organization has prohibited individuals or entities doing business with the Organization from publicizing contracts with the Organization.5 Of course, the Organization could establish a similar policy in regard to private donations, although it has not yet done so.

   13. In principle, having regard to the fact that the acceptance of a private donation is conditional on the donation being "consistent with the policies, aims and activities of the Organization" (financial regulation 7.2), publicizing a donation to the United Nations may be acceptable if such action itself is "consistent with the policies, aims and activities of the Organization". This would be the case

       if such publicizing is not aimed at promoting products or services offered by a donor (in case the donor is a commercial entity), or at otherwise soliciting its business opportunities, but rather at support for the United Nations and its activities.

   14. Specific forms and ways of publicizing a donation consistent with the policies, aims and activities of the Organization may differ depending on specific circumstances on each particular occasion. Prior concurrence of the Organization provides an opportunity to monitor such activities to protect the interests of the Organization.

   15. As regards the extent to which the United Nations name or emblem could be authorized for use in publicizing activities, an analysis of the policy and practice of the Organization reflects the discretion that the Secretary-General has in this regard. What constitutes commercial use or, alternatively, what may be deemed to be consistent...