TRAVERSE CITY, MI — When brothers Keegan and Matt Myers put highway sign “M22” on T-shirts, it looked cool – a symbol of their love for Northern Michigan.

After the shirt made a magazine cover, everyone wanted one.

Now, the state wants it back – the sign, not the shirt.

The state has sued M22 LLC, alleging it violated state and federal law by trademarking the symbol of the popular and scenic Northern Michigan highway.

It says the law does not allow registration of the state’s road signs and that trademarks make the highway non-compliant with the Manual on Uniform Traffic Control Device, or MUTCD.

Matt Myers, left, co-owner of M22 LLC in Northern Michigan, and his wife, Stephanie, meet Gov. Rick Snyder at a 2013 ceremony honoring small businesses.Courtesy of Keegan Myers

“The state’s trunkline route marker is installed on numerous federal aid projects in Michigan and, as such, the MUTCD Standard precluding trademark protection for all signs installed on federal aid project applies,” Assistant Attorney General Toni Harris wrote in the lawsuit.

In a 2012 opinion, state Attorney General Bill Schuette said: “No entity can lawfully claim exclusive control over use of the State’s highway route marker design because the design is in the public domain and is otherwise not subject to protection under trademark law.”

Traverse City attorney John Di Giacomo said the lawsuit, originally filed in Ingham County Circuit Court then transferred to U.S. District Court in Grand Rapids, is an act of desperation by the state. The case has been litigated for nearly three years in front of the Trademark Trial and Appeal Board, or TTAB.

He said the TTAB has rejected three motions filed by the state for judgment in its favor and has been prohibited from filing such motions in the future pending trial next year.

The TTAB also rejected a motion for summary judgment by his clients, court records showed.

“It’s pretty desperate,” Di Giacomo said. “This has been going on for 2½ years. My clients have won every step of the way. The attorney general has run out of options to delay.”

In court documents, Di Giacomo said: “It is unquestionable that state law cannot narrow the federal rights of the owner of a federally registered trademark.”

The brothers use the signs on apparel, wine and retail store services, and an athletic event. They have also designed other popular logos – including, LOVE, with an outline of the state replacing the “V” – that promote Michigan.

The state says the defendants have threatened to sue others who tried to use state signs of other highways. Di Giacomo said his clients’ trademarks do not stop the state, or anyone else, from using “M22.”

It’s no different than a business using the Statue of Liberty in trade, he said.

“There is a ‘Route 66’ trademark. There is a ‘US (Route) 1′ trademark. …’ The only right M22 (the business) has is the use of the sign associated with their goods and services.”
He thinks it is no coincidence the state recently decided to drop the “M” from some M22 signs where thefts have been a problem.

This is a new sign that will replace M22 signs in areas where thefts of the signs have been a problem.Associated Press

The Myers brothers started with a kite-board shop about 10 years ago. Graduates of Michigan State University, they returned to Old Mission Peninsula where they grew up.

They had no money but had a willingness to “work your butt off every day.”

They didn’t intend to sell T-shirts. They put M22 on a t-shirt because the highway is part of their adventure up north.

Keegan Myers wore one for a Traverse magazine photo shoot. Their business “exploded.”

Now, they employ 40 and were honored with others in 2013 at a “Michigan Celebrates Small Business Ceremony” in Lansing. It was the same year the state first took legal action.

They fear the state is trying to put them out of business.

“Bottom line, we’ve never stopped anybody from using (M22),” Keegan Myers said.

They had held the trademark for five years and said there were no challenges.

Then, the state Attorney General’s Office in 2012 determined “that no entity can lawfully claim exclusive control of use of the State’s trunkline route marker design.”

The next year, the state filed a cancellation proceeding over the trademark.

The court case contains hundreds of pages of documents and chronicles the history of road signs dating to the early 1900s.

The state trunkline highway known as M22, passing through Benzie, Leelanau and Manistee counties, was established in 1913. It has been designated as part of scenic tours, including the “Scenic Heritage Route,” which has been changed to “Pure Michigan Byway.”

The state contends that Federal Highway Administration, or FHWA, approved the state’s historical diamond state highway markers design, in place of a circle design, which renders it not able to be protected by trademark by public or private parties.