HOW can you possibly trademark Glencoe, Culloden, Bannockburn and St Kilda? The freedom cry (that is, freedom from lawyers) went up this week, as National Trust Scotland (NTS) got itself into a right fankle.

The heritage giants were caught sending a “cease and desist” lawyer’s letter to the makers of the Glencoe Double Ventile jacket. Their grounds? That NTS was the “registered proprietor of the UK trademark registration for GLENCOE”. And, it transpired, for a string of other stirring locations in Scottish history as well.

The nation’s response: when did that happen?

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The outraged maker, Hilltrek’s Dave Shand, stuck their letter up on his Facebook page, causing a national media storm. (The current state of play is more conciliatory: NTS have apologised for the letter’s tone, and are seeking to open talks with Mr Shand).

This may seem like a storm in a William Wallace mug. But it’s actually a fascinating crockery-smash of law, culture, commerce, values and history.

The lawyer’s letter is clear. In this action, NTS were aiming to both “protect the interests of the local community and the local trade” in Glencoe. Yet the use of law to protect local interests – particularly around materials like place names or cultural traditions – is fraught with difficulty.

To make a point, let me go to an extreme. There are current examples of law that don’t just defend the livelihood of a place, but establish the personhood of a place.

In April/May, three rivers – two in India, one in New Zealand – were accorded the status of “legal person”, by regional and national courts. It’s regarded as a victory by locals conservationists. But the outcomes are complex.

A “legal person” isn’t the same as a human person. For example, a corporation has personhood – which means it has legal rights and duties separate from its managers and stakeholders. This is the power these rivers (the Ganga and Yamuna in India, and the Whanganuni in New Zealand) and their official representatives now possess.

As The Conversation website puts it: “Giving nature legal rights means the law can see ‘nature’ as a legal person, thus creating rights that can then be enforced. Legal rights focus on the idea of legal standing (often described as the ability to sue and be sued), which enables ‘nature’ to go to court to protect its rights. Legal personhood also includes the right to enter and enforce contracts, and the ability to hold property.”

These startling environmental powers – which allow the rivers to “defend themselves” against pollution, exploitation or enclosure – rest on a prior ground of religion and identity. The Maoris have been trying to legally establish this river as a “living entity” and “ancestor” for 140 years – an expression of their view of being fundamentally unified with the natural world.

The Indian ruling cited New Zealand’s victory explicitly, with the sacred status of the Ganges (which both rivers make up) as the cultural backdrop to the decision.

How rigorously will these rulings be enforced and managed? Time will tell. But they put National Trust Scotland’s wrangling of law and place in an interesting context.

In the places it tries to trademark, NTS is also setting itself up as the guardian of a kind of continuity and coherence. The trust explicitly establishes a link between these places’ “iconic” and “historical” importance, and the economic activity and well-being of their residents (including themselves, as land and property owners).

Both them and the river activists seek to use a hard legal device (trademark law, corporate personhood) to reinforce those links.

But might I suggest that National Trust Scotland’s ethos has a little less popular resonance than the fiery Maoris of New Zealand, or the Hindus’ veneration of the Ganges? And that this might explain the widespread irritation with NTS’s practices?

Indeed, the question of who “owns” the iconic power of Glencoe, Culloden, Bannockburn or St. Kilda is particularly difficult to answer.

One presumes that there is no deep claim upon Scottish land waiting to be pressed by “Highlanders” or “Gaels”, against centuries of government and commercial expropriation. (Although as Madeleine Bunting has written recently, Gaelic is a “language of ecological resistance”. Its vocabulary and worldview puts fire in the bellies of those who want to pursue a more community-based pattern of landownership.) Yet what of those who identify with Scotland, its lands and its history, either by genealogy or affinity? They might wish their enterprise or project to be identified with some aspect of the beauty, or the stories, of the country. Is Scotland’s capacity to inspire the world – or even, in the Hilltrek case, to inspire its own small-traders and citizens – now to be put under constraint by the legal eagles of a heritage quango?

The NTS answer to the last point seems to be: Unfortunately, yes it is. Why? Because other operators, across the world, have the right to aggressively use trademark law to put commercial constraints on the usage of Scottish geographical names. And if we don’t get in first, they will.

As Mark Bishop, the “customer and cause” head of National Trust Scotland, wrote on their website this week: “Unless there is an agreement at national level by the various bodies responsible for legislation which ensures placenames like Glencoe and St Kilda can’t be trademarked, we have to deal with the consequences and play by the rules of the game as they are. Whether we like it or not.”

A none-too-subtle punt there for more sophistication around this at the “national level” (what nation?). Incidentally, the last I read about indy and trademark law – which was in the White Paper Scotland’s Future in 2013 – it promised “a simpler and cheaper, more business-friendly model than the current UK system, which is bureaucratic and expensive, especially for small firms”. Ehm, maybe not quite in the spirit… The widest context for all this is, of course, the tourist dollar. The push is to constantly improve, diversify and develop the tourism experience – historic site by quaint village by stunning landscape – in order to pull the world’s affluent, and their spend, our way.

Every other spot on the planet wants to proclaim its visitable uniqueness. Trademarking their place names may be a strong tool to hand.

In this context, NTS can easily justify its sharp practice. Establishing a “mark of trade” helps them defend the quality of their own commerce, whether merchandise or services. This doesn’t just maintain high standards in its tourist offer, but also fills the trust’s charitable coffers.

Yet this is a sore path. It implies a future of ever-mounting litigation – and an increasing transfer of precious funds to the legal offices of Grabbit, Snatchem and Purse.

Here’s another scenario. What if commercial TV or film companies want to dramatise major moments in Scottish history – whether domestic ones looking to fill out all these forthcoming extra channels, or Hollywood seized by a fit of Scotch myst.

If the charity is left to its own legal devices, will media people have to start negotiating with National Trust Scotland before being able to start filming a Glencoe, Bannockburn or St Kilda? And frankly, who appointed them?

There are enormous questions lurking under the surface of all this, for those of us hoping to get back down to the detailed work of Scottish nation-building.

In a world of place brands, trademarks and intellectual property regimes, the question of “who owns Scotland?” is actually about much more than your wee bit hill and glen.

Can we start to join the global conversation – begun by the late economist (and Nobel Prize-winner) Elinor Ostrom, and also by a generation of digital activists – about where the “commons” might exist in Scottish life? How could a Scottish jurisdiction protect what might be regarded as our common heritage from market operations? And also, when it might be appropriately opened up to trade?

National Trust Scotland have blootered into this area – and I expect Mr Shand’s jaikets will now be flying out of the warehouse.

But it has all been thoroughly educative, at least.