Bhutan turns tourism into 'Gross National Happiness'

At the Takin Preserve: Bhutanese Prime Minister Tshering Tobgay
with me and visitors from the United Kingdom and United States.

Little more than a half century ago, the Kingdom of Bhutan was walled off to the world.

Today, tourists are welcome, but with strict controls that aim to leverage social and economic development.

Earlier this month, I traveled to Bhutan and had the privilege of meeting the prime minister, the Hon. Tshering Tobgay. The PM was visiting the Motithang Royal Takin Preserve in Bhutan, located just outside the capital, Thimphu.

Takin calf at the preserve.

RJ Peltz-Steele CC BY-NC-SA 4.0

The takin, by the way, is a large mammal native to the Himalayas, a genetic relative of sheep. One subspecies of takin is specific to Bhutan and is revered as the national animal. The preserve provides a sanctuary for the massive herbivores, thus also protecting the environment from their destructive appetite.

Tobgay was not at the preserve for a refresher on Bhutanese fauna; rather, the PM was escorting the 2025-appointed American ambassador to India and special envoy for south and central Asia, Sergio Gor, on a touristic and diplomatic visit. Gor was reciprocating a Tobgay visit to the United States in December.

Tobgay and Gor, at the PM's right, feed a takin.

RJ Peltz-Steele CC BY-NC-SA 4.0

A longtime Bhutanese politician, Tobgay is American educated. He earned a bachelor's in mechanical engineering at the University of Pittsburgh in the 1980s and then a master's in public administration at the Harvard Kennedy School in the 20-aughts. He published a book in English last year: Enlightened Leadership: Inside Bhutan's Inspiring Transition from Monarchy to Democracy (inset below).

Bhutan is a constitutional monarchy, though still leans heavily on the monarchy part of the description. The crown initiated a policy of democratization in 1952. A first national assembly was appointed the following year and given the power to impeach the monarch. Today, the king formally appoints the prime minister, though in practice the appointee is elected by the legislature. Similarly, final decisions of the Supreme Court formally are referred to the crown for approval.

Supreme Court of Bhutan, Thimphu.

RJ Peltz-Steele CC BY-NC-SA 4.0

In modern international law, Bhutan is renowned for its commitment to "Gross National Happiness" (GNH), a national policy priority introduced in the 1970s. A holistic measure inspired by Buddhism and informed by factors such as health, education, and living standards, GNH has been embraced conceptually by the international community—Bhutan joined the United Nations in 1971—as an alternative to economic productivity, the conventional measure of a country's success. One Bhutanese host explained to me that GNH does not mean every person is happy; rather, GNH describes the aims that should justify national policy-making.

Bhutan opened to foreign tourism only in 1974 and allowed television and the internet only in 1999. It still guards its borders jealously, allowing a limited number of tourists who must book through state-authorized agents and pay a US$100-per-day sustainable development fee. When I visited, my visa was arranged wholly by the tour service I used.

However restrictive Bhutan's social and political conservatism, I could not argue with the results I saw on the ground. People I met in Bhutan expressed affection for the king and queen, often noting that the royal family lives in a modest home and champions public education. Schoolchildren I happened upon in Thimphu were uniformed and polite, while also cheerful and playful, and they spoke English confidently.

Buddha Dordenma, visible from Thimphu center.

RJ Peltz-Steele CC BY-NC-SA 4.0

The sustainable development fee seems to be well reinvested in infrastructure, such as paved roads, and touristic sites, such as the 177-foot Buddha Dordenma statue, completed in 2015, that towers over Thimphu. A travel companion told me that the winding rural roads we traveled were unpaved when he visited a couple of decades ago. In literacy and life expectancy, Bhutan significantly outpaces its cohort in the "medium" range of the U.N. human development scale.

Thimphu, capital of Bhutan.

RJ Peltz-Steele CC BY-NC-SA 4.0

Insofar as I heard any gripe about government policy from the Bhutanese, it was that high-quality healthcare remains elusive, especially in the countryside. Nevertheless, when an American travel companion asked my guide about the cost of treatment after the guide mentioned a family member's cancer, the guide narrowed her brow in puzzlement. Then she shook her head, understanding the question, and said, "free, of course."

Rinpung Dzong, or "Paro Fort," a 15th-century monastery
and top tourist destination, in Paro, Bhutan's third-largest city.
Owned by RJ Peltz-Steele CC BY-NC-SA 4.0

Thinking over what we had seen, some of my travel companions wondered aloud whether monarchy might not be so undemocratic after all. That struck me as curious after what I heard about some Nepali youth protestors speaking wistfully of monarchy there. Invariably upon such musings, an American, sometimes me, would say that the efficacy of monarchy might depend a bit too much on who is wearing the crown.

The United States does not have formal diplomatic relations with the Kingdom of Bhutan, thus Ambassador Gor's visit as special regional envoy. Gor has some personal connection to, well, at least the Asian continent. He was born in Uzbekistan—"Gor" is a chosen truncation of Gorokhovsky—and migrated with his family to the United States, via Malta. He graduated from secondary school in Los Angeles.

Amb. Gor

How did an L.A. immigrant wind up with an ambassadorship in the Trump administration? Gor has been involved in Republican politics since his post-secondary days at George Washington University. His recent ambassadorial qualifications include fundraising for President Trump and starting a Trump-reverent book publishing company with Donald Trump, Jr.

After the 2024 election, the President appointed Gor to head personnel appointments. President Trump later credited his "great friend" Gor with "nearly 4,000" party-loyal hires in the new administration. Presumably Gor himself included.

Make space for public lands, right to recreate

Beaver Dam State Park

Different people feel differently the pinch of the federal government shutdown in the United States. 

(All photos from Nevada in August 2025, except T.R. Birthplace; all photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.) 

I'm fortunate not to depend on the federal government for my paycheck. I'm saddened for the steadfast government clerk trying to make ends meet, and nothing I write here means to diminish that anxiety. Professionally, I've been disappointed to see the work of the federal Freedom of Information Act Advisory Committee paralyzed. The committee comprises some heroic public servants in federal agencies.

Theodore Roosevelt Birthplace
National Historic Site,
N.Y., June 2025

On the purely personal front, what hits me hardest is to see the closure of public lands, such as parks and museums. I treasure these places where the public can find education, recreation, and respite. Maybe because I'm an academic, I don't much distinguish among the three. So much of our public dialog in America is preoccupied with how we work. But it's on public lands that Americans live.

As a libertarian, I'm wary of public lands. But I'm not a great, or "pure" libertarian. I have always been what I call a "moderate" libertarian—I've been called a "bad" libertarian—because I do not believe that the private sector is the answer to all problems. I rather believe that being a libertarian is about being thoughtful: making an informed decision at the threshold of any given problem as to whether the problem is better addressed by society as a composition of independent private actors—the presumption—or by society as a collective.

A vexing problem for libertarians is the tragedy of the commons, which arises when competing private individuals, acting in their own interests, will intolerably deplete a resource that the society as a collective requires. The environment is often raised as paradigmatic example. Any one private actor is incentivized only to cut down the trees, or use fresh water. But society needs there to be trees and fresh water, saved from depletion.

Selected public lands in Nevada, besides state parks

American society is heavy on libertarianism—the "Wild West" ethos has long outlived western settlement—but maintains its own delicate balance of liberty and collectivism. The duplexity was embodied by President Theodore Roosevelt, whose reconstructed childhood home I visited in New York in the summer. Roosevelt, a nature enthusiast, was a rugged individualist, and also is credited with founding the very notion of U.S. national parks, which today are widely regarded as a crown jewel of federal government purpose.

All 27 Nevada state parks

Pure libertarians respond to the tragedy of the commons by insisting that the private sector can handle it. The tree cutters ultimately will stop cutting trees, or farm more trees, because they want to keep cutting trees. Water consumers will not use all of the water, because eventually, they will suffer thirst. A slightly watered down take on pure libertarianism makes room for non-governmental public interest organizations to manage collective resources. But there's no place for government.

My Nevada drive
(excluding two national parks
I visited previously)

I find these responses strained and unconvincing. If we destroy the glaciers of Glacier National Park because corporations want to commodify the pure waters, or because wealthy people want to land helicopters on them and take home souvenirs, there's no restoring a natural glory that took 170 million years to form.

If the planet bakes while we wait for the trees to regrow, then the private-sector experiment has failed in a profound and irreversible way. If we run out of fresh water while we wait for innovation to perfect desalinization, then millions might die, and only a few persons with inherited wealth might survive. I wouldn't call that a socially optimal outcome. 

The problem with the purely individualist approach is that it assumes infinite time, perpetual capacity for resource renewal, and indifference to human suffering in the meantime. That sounds to me like a recipe for humanity's self-extinction.

"Citizen Science Station,"
Tule Springs Fossil Beds National Monument

Public lands are an easy call for me, even as a libertarian. I would like to live in a world in which everyone has access to recreational opportunities, and everyone has a chance to see the inexplicable glory of the creation that fills the earth.

Writing about nuclear weapons in September, I mentioned the time I spent in the summer exploring public lands in Nevada. I visited all 27 Nevada state parks, and a great many other public lands as well: local, state, and federal. Local and state parks fortunately carry on while the federal government is shut down.

I am grateful for all these places, local, state, and federal, and the people who steward them.

One fun thing I happened upon in Nevada was a "Citizen Science Station" at the Tule Springs Fossil Beds National Monument. There, a bracket is mounted on a pole, prepared to receive a smartphone, so that passersby can take a photograph of the terrain. Images can then be uploaded to Chronolog.io, which partners with the National Park Service. The collected images are then compiled into a time lapse series (below, at end), which users can enjoy and study. I contributed an image (Aug. 7, 2025).

Notwithstanding so much natural beauty and the participatory excitement of the Citizen Science Station, I found memorable something else I saw at Tule Springs, a different kind of socially minded contribution from the private sector:

Go see the natural wonders of Nevada, including fossils and fossil beds. See them before the pure libertarians cart them off to private museums, where no doubt they'll be best cared for.

Durango Loop Temporary Trail at Chronolog

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Conflict ebbs in West Africa; entrepreneurs ready to welcome tourism, spark economic development

Conflict is ebbing in West Africa, and local businesses are hoping to spur tourism and economic development to restore ravaged communities.

Many parts of West Africa have been difficult to reach in recent years, owing to armed conflicts and social turmoil. That means cultural treasures such as UNESCO World Heritage Site Timbuktu have been off limits, and communities that would benefit from foreign spending suffer economic paralysis or worse.

The situation is improving, if at a two-steps-forward-one-step-back pace. To navigate the changing terrain and start restoring tourism and economic opportunity, local entrepreneurs such as Mali-based Satimbe Travel are stepping up.

Ouologuem dances at the Ouidah Voodoo Festival, Benin, 2020.

RJ Peltz-Steele CC BY-NC-SA 4.0

I hope to travel with Satimbe because my friend Hamadou Ouologuem is one of its founders and a tour leader extraordinaire. I am happy to give him and his partners some positive press in the interest of regional development. This is in no way a compensated promotion.

Satimbe has been in the works for many years. The project has prevailed over potentially ruinous setbacks in the pandemic, in 2020 and 2021, and in the outbreak of violence in the Central Sahel (Burkina Faso, Mali, and Niger), in 2023. The latter conflict devastated communities, as rival factions—one being the Russia-based Wagner mercenary force—deployed scorched-earth tactics against civilians, inflicting crises of hunger and housing. 

The conflicts have not wholly abated, but have been scaled back to hot spots that guides can plan around so travelers avoid. 

In August, the Mali government felt comfortable enough with security in Timbuktu to return there ancient documents that were removed to the capital Bamako before al-Qaeda militants occupied the city in 2012 (PBS NewsHour). Meanwhile, in a positive development for civilian security, Wagner forces in Mali have experienced what The Sentry, a D.C.-based nonprofit and war-crime investigative organization, described in an August report as a "meltdown."

Satimbe mask
(In Museum CC0)

My two cents: attacks on civilians and resulting humanitarian crises in the Sehel would headline the world news were it not for the West's peculiar blind spot for Africa. The region needs foreign investment, and as importantly to get started, needs foreign interest and understanding. The way to help is simply to go, responsibly, all the better relying on a homegrown service provider such as Ouologuem.

Ouologuem's experience in the region is renowned; he is the on-the-ground coordinator to whom professional producers turn, especially in Mali. He worked on public broadcasting's Finding Your Roots with Henry Louis Gates, Jr.; BBC One's Sahara with Michael Palin; Into the Unknown with Josh Bernstein: Lost Gold of Timbuktu; and Digging for the Truth: Timbuktu.

A "satimbe" is a ceremonial funerary mask of the Dogon people in Mali and Burkina Faso. The mask is associated with a female figure, like in the Satimbe Travel logo, placed on top.

Satimbe Travel can arrange tours in Mali, Burkina Faso, Benin, Togo, and Ghana. The company can tailor flexible itineraries for two days to two weeks, or more. The company is prepared to make arrangements for tourists, NGOs, missionaries, and corporations.

Vietnam marks 50 years since fall of Saigon, but American corporations overshadow communism today

At Hoàn Kiếm Lake, Hanoi

Vietnam recently celebrated the 50th anniversary of the fall of Saigon, and I visited Hanoi and Ho Chi Minh City to see the country today.

(All contemporary photos by RJ Peltz-Steele, CC BY-NC-SA 4.0, with no claim to underlying works.) 

Known in Vietnam as "the civil war" or "the American war," the Vietnam War was a hot chapter in the Cold War story, as the United States sought to counter expansion of communism in Indochina.

The war was barbaric on the ground and devastating to life and land. Estimates range from one to three million civilian and military lives lost in Vietnam, Cambodia, and Laos. More than 58,000 U.S. service members were killed. Land and wildlife were laid waste by lethal chemical defoliants, Agent Orange just one among them, inducing waves of cancer and birth defects. 

In the United States, veteran healthcare was overwhelmed by what would later be recognized as post-traumatic stress disorder. Meanwhile, the social turmoil of war protest shaped a generation of counterculture so powerful that it went mainstream, transforming law and society—even working as impetus in the development of modern First Amendment and transparency doctrine.

(For an anecdote from "the Hanoi Hilton" prison, see Analog propaganda proves persuasive to some at 'Hanoi Hilton,' where exhibits selectively whitewash war, The Savory Tort, July 30, 2025.)

Shipmate, the magazine of the U.S. Naval Academy Alumni Association, recently has published a series on the Vietnam War and its aftermath for veterans, "Legacy of Valor." The latest issue, July/August 2025, contains the fourth entry in the series and features USNA alumni stories.

The May/June 2025 Shipmate, which featured Marines' stories, also highlighted Vietnam War exhibits in the National Medal of Honor Museum (MOHM), which opened in Arlington, Texas, just in March. I was struck by similarities between MOHM—in the narrative and pictures, at least; I have not visited yet—and the War Remnants Museum in Ho Chi Minh City, where I visited in June. MOHM's largest artifact is a restored Bell UH-1 "Huey" helicopter donated by a veteran pilot; there's an American UH-1 Huey at the museum in Vietnam, too (with me below).

(Inset: Cover of Shipmate, March/April 2025, credited to Capt. Tom Murphy, USNA '66, USN (Ret.), depicting Murphy, at left, with his SEAL team in Vietnam in 1969. "Murphy was awarded a Silver Star for his actions that helped eliminate a heavily fortified Viet Cong camp on 2 March 1969," the magazine added.)

An American Huey UH-1H at the War Remnants Museum, Ho Chi Minh City

Ho Chi Minh's Mausoleum, Hanoi

Saliently, the superpower United States lost the war, beating a humiliating retreat from the southern capital, Saigon. Vietnamese forces trumpeted the persevering efficacy of ruthless guerilla warfare. The sweep of communism crushed western collaborators and the remaining resistance and sparked a humanitarian crisis as refugees escaped to the sea.

Yet to walk the streets of Vietnam's major cities today, one could be forgiven for confusion over which side in fact won the war.

Ho Chi Minh City

The fall of Saigon—today, Ho Chi Minh City, though "Saigon" is still widely used, at least to refer to the touristic center, and "SGN" is the IATA code of the international airport—is celebrated on April 30. The contiguity of international labor day on May 1 makes for a holiday break.

This year, innumerable banners, signs, and monuments lined streets throughout the country to celebrate the 50th anniversary. I wonder at the cost. The posters bore patriotic illustrations that would be at home in a historical compilation of 20th-century Cold War propaganda.

Yet the banners stand juxtaposed against a background of signs demonstrating the market dominance of western corporations, namely the likes of Coca-Cola, KFC, and ubiquitous 7-Elevens. 

A local guide who took me to the Cu Chi tunnels, from where Viet Cong guerilla fighters waged brutal resistance against American forces from underneath a great swath of the country, told me how his family lost their home and modest wealth and fled Saigon when all property was nationalized after the communists took over the south.

Communism never delivered on its promises, he said. When his father returned to the family home, he found it occupied by party apparatchiks, hardly "the people." Still today, he said, despite commercial development, Vietnamese people suffer poverty, grade-school-limited public education, and no universal healthcare. That's not much to show for a communist people's victory.

"We hate Americans," he joked, smiling. He explained that the regime, apropos of the classic propaganda-poster style of the 50th anniversary images, still teaches schoolchildren to hate America. But people know better and have "moved on," he said. "Now we drink Starbucks."

It occurred to me, insofar as corporatocracy is the measure of the day, it's maybe truly representative democracy that lost the war, both in Vietnam and in America. 

Lunar-new-year commemorative beer from Budweiser, for sale at shop, Mỹ Tho

Roadside signs, Ho Chi Minh City

Billboards, Ho Chi Minh City

Exhibit at War Remnants Museum, Ho Chi Minh City

Marker at Hoàn Kiếm Lake, Hanoi

Exhibit at Thăng Long Imperial Citadel, Hanoi

 

Marker in traffic circle, Hanoi

Contemporary sculpturist comments on Ukraine war

Lakenen considers the war in Ukraine in this 2022 sculpture.

A couple of weeks ago, I visited artist Tom Lakenen's Lakenenland, a sculpture park in the Marquette area of Michigan's Upper Peninsula.

I'm a sucker for an outdoor art installation, and Lakenen's work does not disappoint. I only had a couple of hours, but I could have spent the day exploring the inviting woodsy trails.

Composed of "junk," Lakenen's art in its very existence speaks to capitalist materialism and environmental sustainability. About and even besides such themes, Lakenen has a lot to say, and much of it resonates with the ordinary American, especially in terms of economic frustrations. I could not help but notice that vehicles in the parking lot boasted bumper stickers of both "red" and "blue" American political extremes. But insofar as any visitors expressed outrage, it was along with the artist, not at him.

Lakenen is always adding new pieces. I was especially moved by his 2022 work on the war in Ukraine. Above and below, I share some images of that piece. I thank Tom Lakenen for sharing his art with visitors. All photos by RJ Peltz-Steele CC BY-NC-SA 4.0, with no claim to underlying sculptural works, presumed © Tom Lakenen.

Curators decry parody souvenirs, claim quasi-copyright

D 'n' me at the Accademia in June.
RJ Peltz-Steele CC-BY-NC-SA 4.0

David's genitals are all the rage in Florentine touristic fashion, and some observers see a kind of intellectual property (IP) problem.

Italian law has pioneered the protection of cultural heritage since the 15th century (Mannoni), centuries before Italian unification. Medici rulers limited the export of art in the 19th century (Calabi). In the 20th century, a 1909 law asserted a public interest in protecting items "at least 50 years old and 'of historical, archaeological, paleo-anthropological interest'" (N.Y. Times).

Italy continued to lead in protective legal measures in modern times. A public responsibility to safeguard the national patrimony was enshrined in the post-war constitution in 1948 and became the basis of a "complex public organization" (Settis). According to Giambrone Law, Italy was the first nation to have a police division specially assigned to protect cultural heritage. Italy embraced a 2022 European treaty on cultural protection with aggressive amendments to domestic criminal law (LoC). Woe be to the Kazakh tourist who carved his initials into a Pompeii wall this summer (e.g., Smithsonian).

Italian legal protection has extended beyond the physical. A 2004 code of cultural heritage limited visual reproductions of national patrimony without prior approval by the controlling institution and payment of a fee to the institution. 

That measure caused more than a little hand-wringing in copyright circles, as the law seemed to reclaim art from the public domain. The Italian Ministry of Culture doubled down with regulations in 2023, even as the EU moved to strengthen the single-market IP strategy.

Probably needless to say, images of famous works of Italian art are sold widely, in Italy and elsewhere, on everything from frameable prints to refrigerator magnets. Enforcement of the cultural heritage law is thin on the ground, but the government has scored some significant wins against high-profile violators.

A recent AP News story by Coleen Barry described the latest outbreak of this IP-vs.-free-speech conflict, this time over images of David. Cecilie Hollberg, director of the Galleria dell’Accademia, where David resides, has decried vendors who profit from "debase[ment]" of David's image.

Aprons for sale, 2010.
Willem via Flickr CC BY-SA 2.0

I saw David in late June. It was the second time I visited him; my first visit was in 1996. I don't well remember Florence from that long ago. But this time I surely was surprised by the quantity and variety of David gear available for sale on the streets around the Accademia, especially the sort of gear that Hollberg is talking about. David has become a character in every variety of indecent meme and crude joke about drinking and sex. David's penis is a favorite outtake.

These uses of David's image especially implicate moral rights in copyright law. Moral rights aim to protect the dignity of creators against distasteful uses and associations. However, as such, moral rights typically end with the life of the creator. Michelangelo died in 1564. The theory behind the cultural heritage code is indicated by the very word "patrimony": that there is a kind of inherited public ownership of classical works, thus entitling them to ongoing moral protection.

Copyright in U.S. law and in the common law tradition in the 20th century was slow to recognize moral rights, which have a storied history in continental law, especially in France and in the civil law tradition. But common law countries came around, at least most of the way. Broader recognition of moral rights was motivated principally by treaty obligations seeking to harmonize copyright. A secondary motivation might have been a proliferation of offensiveness in the multimedia age.

Hollberg has been the complainant behind multiple enforcement actions. Barry reported: "At Hollberg's behest, the state's attorney office in Florence has launched a series of court cases invoking Italy's landmark cultural heritage code .... The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said." Not a bad side hustle.

David's shapely backside is not to be underestimated.
RJ Peltz-Steele CC-BY-NC-SA 4.0

EU regulators are looking into the legal conflict between free artistic expression and protection of cultural heritage, Barry wrote. My inclination to classical liberalism puts a thumb on the scale for me in favor of the commercial appropriators. I'm uncomfortable with inroads on the public domain. There already is excessive such impingement on creative freedom: inter alia, abusively lengthy copyright terms, chaos around orphan works, prophylactic notice and take-down, and publisher-defined fair use. The idea of removing permissible uses from the public domain is antithetical to liberal norms.

At the same time, I get the frustration of authorities. The average family visiting the dignified Accademia, eager to induce a much-needed appreciation for history and art in the youngest generation, first must navigate the cultural gutter.

Trademark feud centers on unsolved double murder

Lizzie Borden House, left; Miss Lizzie's Coffee, right.

A museum and a coffee shop are locked in trademark litigation over the name of an heiress accused of an infamous double murder. (All photos by RJ Peltz-Steele CC BY-NC-SA 4.0.)

Last year, Williamsburg, Va.-based US Ghost Adventures, owner-operator of the Lizzie Borden House and Museum in Fall River, Mass., sued Miss Lizzie's Coffee and its owner-operator, Joseph M. Pereira. The coffee shop opened in a house next door to the museum on Second Street in Fall River. US Ghost Adventures accused Miss Lizzie's of infringing on its trademark in "Lizzie Borden" and profiting from consumer confusion over the coffee shop's ownership.

In October, the federal district court, per Judge Leo T. Sorokin, denied the plaintiff a preliminary injunction. US Ghost Adventures appealed, and the matter is now pending in the First Circuit.

In 1892, Lizzie Borden was tried and acquitted of the axe murders of her father and stepmother. The brutality of the killings and the gender of the accused summed a blockbuster news event in the 1890s—not coincidentally, the pyrite age of yellow journalism—and the public followed the criminal trial breathlessly. No one ever was convicted of the crime, and Borden lived the remainder of her life under a cloud in Fall River social circles. The case has been a font of endless speculation in the popular culture, inspiring books, articles, films, TV shows, video games, songs, and nursery rhymes.

Lizzie Borden House and Museum

Opened to the public in 1996, the Lizzie Borden House and Museum, where the murders occurred and Lizzie lived at the time, features artifacts from the Bordens' life and the crime. The bed-and-breakfast part of the business capitalizes on the reputation of the property as haunted.

In August 2023, Pereira opened the coffee shop in a house adjacent to the Borden House. There is no confusion about what "Miss Lizzie's" refers to. The shop features images of Lizzie, boasts an overall theme of bloody death, and sells small souvenirs related to the Lizzie Borden story. US Ghost Adventures sued in September 2023.

"Hatchet blade" mark
registered to US Ghost Adventures
USPTO

While there is no confusion over the fact that both businesses aim to profit off the Lizzie Borden story, that overlap in itself does not constitute a trademark infringement. The defendants argued in federal district court, and the court agreed, that Lizzie Borden's name and image, and the story of the Borden murders are in the public domain. Trademark specifically protects only the brand name of the Lizzie Borden House and Museum as a hospitality service provider.

(UPDATE, Aug. 7: US Ghost Adventures has registered marks in "Lizzie Borden" and in its hatchet-blade graphic (pictured) for "hotel and restaurant services," which, I admit, comes closer to a coffee shop than mere hospitality. I would still draw the line. US Ghost Adventures also has registered "Lizzie Borden Museum" for "museum services" and the hatchet-blade image for key chains, jewelry, mugs, golf balls, hats, shirts, etc. Search "Lizzie Borden" at the USPTO for full details. HT@ Prof. Anoo Vyas.)

The trademark test for "consumer confusion" about who is the service provider presents, essentially, a frame-of-reference problem. US Ghost Adventures says that its trademark precludes another hospitality service provider from using the Lizzie Borden name, or anything confusingly similar thereto, and a coffee shop is a hospitality business. The defendants argued, and the court agreed, that a coffee shop is a sufficiently different enterprise from a bed and breakfast as not to induce consumer confusion.

Miss Lizzie's Coffee

It's not that a coffee shop could not infringe the trademark, but that this one has not, the trial court concluded. The plaintiff tried to tighten the connection between the two businesses by pointing to their proximate location and their common uses of hatchets in signs and promotional images. The court found neither proffer convincing. It makes sense to locate any Borden-themed business near the scene of the crime, and the hatchet images the businesses use are different. Lest there be any lingering doubt in a customer's mind, the coffee shop put up a sign avowing its non-association.

(There is some dispute as well about the difference between a hatchet and an axe, which was used in the murder, and which is depicted where. I don't have the bandwidth to, uh, chop through that thicket.)

Notwithstanding the plaintiff's appeal, I think the trial court got it right. Judge Sorokin convincingly suggested by way of example that trademark law does not preclude a business from using the historical name of Sam Adams, as long as the business isn't a brew works. In the same vein, in any close case, I prefer to see trademark law construed as not at cross-purposes with economic development, which Fall River can use. More touristic business floats all boats.

As the appeal unfolds in the First Circuit, an unfortunate and layered backstory is coming to light. For reasons unstated in the record—one might fairly speculate the burden of attorney fees—Pereira discharged his two lawyers, who withdrew from the case in April 2024. In July 2024, Pereira responded pro se to the appellant-plaintiff's brief. 

US Ghost Adventures was able to sue both Pereira and Miss Lizzie's because, according to the allegations, Periera opened the shop about a month before his business registration was formalized. The plaintiff therefore demanded that Pereira personally disgorge ill-gotten profits from that first month.

The problem now on appeal is that a corporation cannot be represented pro se, and Pereira is not an attorney. So his responsive brief, already shaky on legal formalities, cannot represent the position of Miss Lizzie's. The court accordingly ordered that Miss Lizzie's would not be permitted to argue on appeal. In an August 1 reply, the plaintiff then asked the court to decline oral argument entirely, as Pereira inevitably would argue Miss Lizzie's position in violation of the court's order. 

As I said, I think the plaintiff is wrong on the merits, so the First Circuit should affirm. And that would be the safe bet in ordinary circumstances.

But the plaintiff's reply fairly faults Pereira for thin legal arguments in the pro se brief. That puts the appellate court in an awkward position. Even if the plaintiff bears the burden of persuasion on appeal, the First Circuit is looking at a record short on effective counterargument. 

Considering the preliminary disposition of the proceeding in the trial court, the appellate court might err on the side of reversing and remanding, to develop a fuller trial record. The defendants' pro se bind will persist, though, and would threaten an outcome dictated by access to counsel rather than the case on the merits.

There's a deeper layer yet. It happens that Pereira has a troubled history with the law. According to The Standard-Times, in 1996, he "pleaded guilty to stealing more than $119,000 from 15 people after posing as a lawyer and mortgage broker." Appearing as an attorney in a 1993 housing matter, Pereira "was so good, witnesses say, that ... he stood up to a judge, a clerk and another attorney without even raising an eyebrow," The Standard-Times reported in 1995. A veteran attorney said that "he never suspected a thing," and that Pereira "was very polite and seemed pretty knowledgeable about the lead-paint law."

Pereira's record did not improve subsequently. In 2010, he was sentenced to three to five years' imprisonment after "he pleaded guilty to 13 counts of larceny, one count of practicing law without a license and one count of committing that offense after being convicted of the crime in 1996," Wicked Local reported in 2012. As The Herald News put it upon an arrest in 2019: "Since 1982, Pereira has been arraigned approximately three-dozen times on larceny-related charges. His most recent arrest added another 17 larceny charges to his record." He did beat some charges.

To Pereira's credit, I did not think his response in the First Circuit was as devoid of reasoning as US Ghost Adventures alleged. Albeit in improper form, the appellee's brief more or less rehashed the core arguments in the case. If in proper form, that's what the appellant's brief did, too.

Certainly Pereira's criminal history should have no bearing on the trademark case. The case also, ideally, should not be decided based on either party's access to counsel, though such immateriality of resources is not the way of the American legal system, especially on the civil side.

Whatever comes to pass procedurally, I stand by my assessment of the merits. On Friday morning, I picked up a cup of coffee at Miss Lizzie's.

The appellate case is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 23-2000 (1st Cir. filed Nov. 27, 2023). The case in the trial court is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 1:23-cv-12116-LTS (D. Mass. Oct. 27, 2023) (CourtListener).