This post is not legal advice
Many states have branding laws, which help livestock owners clearly identify their livestock and prevent theft. Neither Maryland nor Delaware are one of those states. State laws which do have branding laws often require a livestock owner to adopt a brand/mark and record that brand with either the state or other appropriate organization. Prior to the livestock owner adopting a brand or mark, the brand or mark must be approved by the appropriate agency or organization. This means the owner must supply a sketch of the brand or mark and the location it will be placed on the livestock. This is done to ensure livestock owners are not using the same brands or marks in similar locations to identify their livestock. Periodically, the organization in charge of registering brands or marks publishes the registrations to make new owners aware of existing marks or brands.
Maryland does not have a branding law on the books, but other states in the region, such as Virginia, require brands be registered. A recent dispute between an Arizona rancher and the Arizona Department of Agriculture highlights a potential issue for states with branding laws: where the brand is placed is key to ownership of the brand.
In Stambough v. Butler, David Stambough bought the Bar Seven (- 7) brand in 1977 for $10 from a retiring rancher. The brand was registered for placement on the left hip of his cattle. Eureka Springs Cattle Co. also owns the Bar Seven brand in California where the brand is applied to the left rib. Eureka moved cattle to Arizona and applied with the Arizona Department of Agriculture (ADA) to register the Bar Seven brand placed on the left rib. ADA accepted the application and registered the brand for Eureka because the Bar Seven would be applied to the left rib which was not similar to any brand applied to the left rib in Arizona.
After learning Eureka’s application was approved, Stambaugh challenged it with ADA, but ADA denied his challenge. Stambaugh then filed a lawsuit against Eureka and ADA, challenging the brand’s registration. The district court agreed that ADA had acted properly in approving the brand as different. Stambaugh appealed.
The dispute in this case focuses on the statutory language, “No two brands of the same design or figure shall be adopted or recorded . . . ” (§ 3-1261(B)). Stambaugh’s argument was the language did not allow ADA to take location into consideration when determining if a brand was similar to one already registered. ADA argued the statute was ambiguous and ADA could determine that location matters when determining if the design was similar to one already adopted.
The court agreed with ADA the statute was ambiguous and considering location of brand as a part of design was appropriate. Looking at the state’s branding law as a whole, other sections made reference to a brand’s location. One section pointed out that using a brand in an unrecorded location was similar to the use of an unrecorded brand (§ 3-1261(G)). Allowing ADA to consider location of the brand was also consistent with the intent of the statute: identifying the ownership of livestock. ADA had a long history of approving similar brands in different locations and Arizona’s brand book was full of such examples, according to the court.
Why care about this opinion? The opinion highlights how one state has developed requirements to determine the ownership of livestock. In states without branding laws, private producer groups may offer similar unofficial registrations of brands or marks. Requiring brands to be consistently placed on one spot, even if similar to other marks used in the same state, can easily assist livestock owners in recovering lost or stolen livestock. This decision highlights that in the end, it will be the location of the mark which is important, and not the mark itself.
Ariz. Rev. Stat. Ann. § 3-1261 (2016).
Julie Murphree, Meet Arizona Agriculture’s Bar 7 Ranch, The Voice (June 13, 2014) available at http://info.azfb.org/blog/bid/389014/Meet-Arizona-Agriculture-s-Bar-7-Rancher.
Stambaugh v. Butler, 2016 WL 4193935 (Ariz. Ct. App. 2016)