8: Francis Darcy -Resub Appeal of Laurel Return of Device
OSCAR finds the name on the An Tir LoI of October 31, 2016 as submitted.
Per fess rayonny gules and argent, three roses counterchanged
The submitter's branch is Three Mountains.
The submission includes the following discussion of a previous return at the Laurel level:
In February 2017, Francis Darcy's device was returned for conflict with Katerina de Glen: Per fess argent and sable, two roses gules and a rose argent all barbed and seeded proper. Only one DC was given for changes to the field, with no DCs for the change of tincture to the primary charge group as half of the roses remained white, and half of the roses remained red with only one of the three roses changing from gules to argent.
A second conflict was called with Odillia Marguerite du Parc: Per fess argent and gules, three cinquefoils counterchanged. As above, only one DC was given for the changes to field and none for the change of tincture to the primary charge group as half the roses remained white and half remained red with one rose changing from red to white. There is no DC between cinquefoils and roses.
We believe that this return is based on an application of the wrong part of SENA. SENA A5G3a, which discusses what is required for a change of tincture to count, says:
If the tincture of at least half the charge group is changed, the charge group will be considered different. There is a distinct change (DC) for swapping or rotating the tinctures of a charge group evenly divided into two, three, or four parts. [emphasis added]
Note that this rule does not penalize "forced" changes of tincture. The only discussion of forced changes is in changes to arrangement (about which more in a moment).
Application of SENA A5G3a
Consider how this rule is applied to different kinds of charge groups. First, consider a single rose split per fess argent and gules vs. a single rose split per fess gules and argent. The rule and precedent makes it clear that there is a DC for tincture between the two, even if the field would not allow the other tincture pattern to exist. There are two DCs between Per fess argent and gules, a rose counterchanged and Per fess gules and argent, a rose counterchanged.
The Darcy decision, together with the decision on Toivo Laukainen (which deals with "forced change" of posture/orientation in similar ways), argues that when there are multiple charges in a charge group, we must consider changes to arrangement of the individual charges within a charge group forced by tincture before we consider whether a DC can be given for any other changes. On the one hand, this is plausible given the broad principle that we give the greatest protection possible under our rules to the registered item.
On the other hand, the rules (in a carryover from the RfS), say clearly that we do not do this when comparing type of charges. Under SENA A5G3a, the design Per fess azure and argent, a lion passant and a mullet counterchanged is unproblematically clear of Per fess argent and azure, a mullet and a lion passant counterchanged. Note that each has a white lion and a blue mullet which are forced by tincture to be in that location. However, SENA A5E2 says clearly, "When possible, each charge in the new armory is compared to the charge in the corresponding location in the protected armory." So at least for type, "forced changes" do not remove the difference.
SENA A5G3a refers to charge groups, not charges. Therefore, the statement:
There is a distinct change (DC) for swapping or rotating the tinctures of a charge group evenly divided into two, three, or four parts.
can apply to individual charges within the charge group or to the charge group as a whole. As we have shown above, for a charge group consisting of a single charge, rotating the tinctures gives a DC even if the rotation is "forced." To treat charge groups consisting of multiple charges differently violates the concept that a charge group should always be treated the same way whether the charge group contains a single charge or multiple charges. Note that the section on forced changes of arrangement as written does not have that problem: a charge group of any size from one to semy can be forced to chief, to dexter, etc., by changes of field tincture.
SENA A5G6 discusses how forced changes do not contribute a distinct change:
Changes to other parts of the design frequently cause changes to the arrangement of charge groups. We call these changes forced; there is no distinct change for a forced change of arrangement. A change to the primary charge group can force the change of arrangement of a secondary charge group. When a type of a charge requires a specific arrangement, there is no distinct change for arrangement when the type of charge is changed.
The discussed changes only affect the arrangement of the charges.
A5G6 also discusses how tincture can force charges into different positions on the field:
Changes in tincture of a divided field or the tincture of a charge group can force the charges into different positions on the field. These forced changes are also not worth a distinct change.
However, when looking at the examples, it becomes clear that the forced changes to the charges are changes to arrangement. The charges were changed in their positions relative to one another. In the submitted device, the charges remained in the same arrangement as the charges in the registered device -- there has been no forced change of arrangement. Instead, the tinctures have been rotated as permitted in A5G3a.
We believe that SENA makes it clear that the idea of "forced changes" is limited to the arrangement of charges on the field. Other changes - of type, of tincture, and of posture - should be compared looking at the charge group as it exists with no attention to "forcing" of the location of individual charges within the group. If this decision is upheld, we believe that SENA needs to be revised to make it clear that we are changing the way these rules should be applied and that those changes should affect single charges as well as multiple ones.
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