How about, “The mechanical pencil, and a pencil in a cap”?
If you go to Amazon.com and enter the word #2 in its search bar, you’ll quickly see hundreds of sites selling pencils called #2 pencils, including the “Official” New York State Department of Conservation’s #2 pencil (the state of New York’s official state trademark) and the Washington State Department of Fish and Wildlife’s “Tribute 3”, with a #2 pencil being part of the symbol that the “Official” New York State Department of Conservation uses.
“Tribute 3”, however, actually does not hold a state trademark, it was sold as a novelty pencil, the type that you make by rubbing an eraser through a tiny piece of newspaper and pushing it to the paper.
Is it legal for retailers to sell the pencil?
I’ll tell you what it means: The pencil is illegal to sell, even if it has no state mark on it. That doesn’t necessarily mean that any retailer can sell it as a product, but it seems to imply that it might be considered an accessory to an act, such as selling it in a package to another person.
To make a long story short, if you’re selling the pencil in the United States, it’s illegal to sell them in Canada at this point. (The law here is set by the federal government, and you’re not likely to get the federal government to change that. It would be a federal lawsuit to do so, though.) But if you sell them in Canada (you can get licensed on a temporary basis), they won’t get a federal mark, and if you ever sell them there again, they’ll be illegal.
So what about pencils that are part of the official logo?
I don’t know about you, but I don’t have room for a pencil in my backpack. They don’t have a federal designation, but that doesn’t mean they can’t be sold as products in the USA, as long as they have a state mark on the tip or point. (You can’t sell pencils that have been made with a state mark on them, that just isn’t legal, unless you’re using the state name of the state in some way. In your example, you can get away with referring to the pencil as “NY State pencil” in Canada (if the pencil was made under the NY state trademark) because that’s the logo that’s available in that country, but you
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